Posted on 12/04/2013 11:28:13 AM PST by EBH
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.
Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.
Adler, a case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.
(Excerpt) Read more at cleveland.com ...
So where does that leave the FDA? the CDC?
I think the challenge based on the Origination Clause has a much better chance. Unlike Congress's power to legislate in the area of health care, there is not a lot of precedent wherein the Court has twisted the Constitution to mean what the Progressives want it to mean.
Obamacare is a revenue bill. Revenue bills must originate in the House. Obamacare originated in the Senate, after Dingy Harry did Select All, Delete, Paste, Save As on a House bill entitled the Service Members Home Ownership Tax Act of 2009. Therefore, because Congress didn't pass the law correctly, it must be tossed. The Origination Clause challenge is a do-over opportunity for Roberts. If he were to get it right, the law would simply be gone — regulations, mandate, taxes, and all.
QUINTUPLE BINGO!!!
How else does anybody think CA changed so rapidly from frequently Republican to entirely DemonCrap? The change came a lot faster after the 1986 amnesty than would have happened if the newly legalized illegals had followed normal legal procedure and applied or citizenship with the regular wait. Instead hordes flooded into the state, infested sanctuary cities like LA and San Francisco, and started voting DemonCrap immediately. IOW the DemonCraps and illegals stole CA from its real citizens and America.
“No, because the mandate is unconstitutional. A Supreme Court Justice is not supposed to be a super-legislator.”
That is probably so, but I still think we might be in a much worse place right now had he ruled correctly. It’ possible that Obamacare will set back big government liberalism for quite some time.
The origination issue is a strong one. For everyone's benefit, here's a direct quote from Article I, Section 7 of the Constitution:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
In fact, Dr. Hotze here in Texas has one such lawsuit making it's way through the courts as we type. Dr. Hotze is challenging Obozocare with a two pronged approach.
First, as mentioned, violation of the origination clause which in essence states that any law that levies a tax MUST originate in the house of representatives. The affordable care act did not.
The other deals with a portion of the 5th amendment because the affordable care act compels employers to pay private health insurance companies for health insurance.
I listened to an interview with Dr. Hotze and his lawyer and was very encouraged. Although it has taken many months for this to go full circle...John Roberts may be smarter than we give him credit for. The supreme court has not ruled on the origination nor 5th amendment previously...leaving Obozocare wide open and vulnerable to be stuck down lock stock and barrel... not simply modified.
Take a look at the links:
http://www.prweb.com/releases/2013/5/prweb10715298.htm
http://drhotze.com/2013/09/supreme-court-to-consider-new-obamacare-case/
yep, except it is not the us gmint pulling the strings, it is a coup..and soon they will have to take over militarily or lose, we are reaching the edge..
Obamma mamba jamma lenin khomeini is a traitor, the dems and pubs are tritors for not holding obammma accountable, he is breaking laws and pushing his power towards total overthrow..I can hear his sick butt now, because I care for you and am against those wage earners and wall street sorts I therefore declare myself king for the peoples good..no one will do anything..our country has fallen, all we are waiting for is to be pushed off the cliff.
Case Western is in Ohio.
Why force another challenge to the law? Why not simply rule it unconstitutional? What advantage is there to what you say is Roberts' MO?
No, Roberts is the one who made the ruling that makes this suit possible, that a state can't be mandated to have a "state exchange".
The Rats don’t give a damned abot the law or the Constitution. Their aim is to fundamentally transform the US into a socialist utopia, i.e. a system withe the elite in charge, forcing their will on the rest of us through a police state.
The SCOTUS isn’t going to let the boy kings centerpiece of his socialist agenda to fail, be it constitutional or NOT.
CWRU great school...son did his Masters there, and did classes for his Bachelor Degree there as well..
Hope Hussein Obama is becoming scared..he should be..
First note that any so-called "independent federal regulatory agency" is arguably unconstitutional under the Constituton's Sections 1-3 of Article I. That is because the Founding States made those statutes to clarify that all federal legislative powers are vested in the elected members of Congress, not unelected federal bureaucrats. In other words, Congress has a constitutional monopoly on federal legislative powers whether it wants it or not imo. And by unconstitutionally delegating federal regulatory / legislative powers to nonelected bureaucrats, Congress is wrongly protecting such powers from the wrath of the voters in defiance of the previously referenced statutes.
Regarding the FDA, I think that FDA should appropriately be an advisory agency to Congress under Congress's Commerce Clause powers. In other words, it's up to Congress to take responsibility for all laws and regulations relating to interstate food and drug commerce. And if voters don't like what Congress regulates then voters can kick federal lawmakers out of office and elect lawmakers who make laws that voters are willing to comply with.
Regarding the CDC, I think that the nation needs such a federal watchdog. But the states need to amend the Constitution to make CDC constitutional.
Regarding the EPA for example, not only does the EPA have no constitutional authority to tell anybody to do anything as per Sections 1-3 of Article I imo, but the states have never delegated to Congress via the Constitution the specific power to regulate the environment. So Congress not only wrongly established EPA, but delegated powers to it that Congress did not have.
Consider that the only reason that citizens and businesses reluctantly ask "How high?" when constitutionally toothless EPA shouts "Jump!" is because parents have not been making sure that their children are being taught about the federal government's constitutionally limited powers.
Regarding NASA for example, I've enjoyed following NASA for many years. But unless it's argued that NASA serves a military purpose which would justify it under Congress's Article I, Section 8-limited powers, NASA is another government agency that the states needed to amend the Constitution to give Congress the power to tax and spend for. And there is nothing stopping the Article V majority states from delegating such powers to Congress via the Constitution.
Finally, note that President Eisenhower needed to encourage Congress to petition the states for an amendment to the Constitution which would have granted Congress the constitutional authority that it needed to tax and spend to build the nation's highway system to improve the economy, a great idea. But consider that President James Madison had actually vetoed Congress's public works bill for building roads and canals, the 14th(?) Congress also wanting to boost the economy. In fact, although Madison agreed (paraphrased) in his veto letter to Congress that roads and canals would boost the economy, Madison also noted that his fellow delegates to the first Constitutional Convention had rejected a proposal to grant Congress, via the Constitution, the specific power to tax and spend for such purposes.
Veto of federal public works bill
Certainly the states would have ratified the required amendment to accomodate Eisenhower's vision for the nation. But note that low-information socialist FDR had previously wrongly ignored the Constitution's Article V when he established his New Deal spending programs. And Eisenhower was probably also a low-information voter who naively followed in FDR's footsteps like so many modern presidents have.
Death to all misplaced apostrophes!!
It’s always best to read the law directly.
http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/html/PLAW-111publ148.htm
Do a FIND on 1311 and 1321 and read and study.
No court is going to overturn Obamacare based on the wording inside this trash. The law professor you quoted came out with his objections in 2011 when many were scouring around to find any pretext to overturn it. Since then, it has become a futile effort to condemn the law based on a few spots here and there of ambiguous language.
It is far more important to focus energies on real threats rather than raise false hopes that some lawsuit based on wording is going to derail and destroy this monstrosity of a law.
The fact is that Obamacare is imploding. Support is rising for the its opposition among republicans, independents, doctors, medical professionals, employers and millennials. Obamacare has become a pariah nearly all on its own with the initial help of conservative champions Cruz and Lee.
The lawsuits filed against Obamacare are ***weak*** and when they fail they detract from the discussion of why Obamacare is wrong for America. The strong lawsuit was the one that Roberts ruled for/against. Roberts heard the ‘tax’ argument which was a replay of steps taken during FDR’s social security fight in court. FDR was saying Social Security was a mandated pension annuity fund TO THE PUBLIC while his lawyers argued in court it was a tax. This was pointed out in late March of 2010 by Rush Limbaugh, myself and other Freepers while the bulk of conservatives chased after the red herring called the Commerce Clause. My opinion is that this all stems from the 16th Amendment of 1913. FDR’s Social Security push was 20 years later and at that time the socialists also wanted healthcare redistribution for all but they realized it would have to be shelved until later and later was 70 years later. And all during those 70 years the push for government run healthcare was never dropped from their political discussion. Then along comes a community organizer surrounded by thugs from Chicago and they ram government healthcare down our throats. That was how they decided to finally get it through after 70 years. It’s all in recorded history.
The lawsuits coming now are ***weak***. Why?
EXHIBIT 1: Take the lawsuit based on the origination clause. It is touted as the strongest going forward now but it is very weak. It pains me to say it but I repeat IT IS WEAK. Why?
Many think Obamacare did not come from a tax bill originating from the House but that is false. The original bill was a tax bill, it just wasn’t a healthcare tax bill. It was a veteran’s homeowner tax relief bill that the devious criminal minded leftwing radical Senate democrats gutted in its entirety and inserted Obamacare. YES THIS WAS AN OUTRAGEOUS ACT! And if the matter stopped at this point, then there would be hope for the lawsuit because the lawsuit rightly points out that the House never intended that this veteran homeowner bill would become Obamacare. But....
So why is it weak?
Because the gutted veteran tax bill that was inserted with the Senate’s Obamacare bill CAME BACK TO THE HOUSE in reconciliation and Pelosi ‘deemed it passed’. IT CAME BACK! A Judge has to see that it went back to the House and the House passed it; ergo the House approved. Result: lawsuit is dead, DOA.
EXHIBIT 2: The ‘State Exchange Lawsuit’, the one that is the subject of this thread.
The language is NOT CLEAR and the boundaries between Federal and State powers is equivocal. You can take it to the bank that a court is not going to get in the middle of how Congress and the Executive branch administer law among states and federally supported ‘Co-ops’. It says the federal government can setup an exchange if the state won’t do it and they can do it in the name of the state because the language is clear that the feds will setup a non-profit to run an exchange for the state. Ergo, it becomes a de facto state exchange run by non-profits and not by the federal government. Read Sections 1311 and 1321. Result: Lawsuit is DOA.
THE POINT IS NOT TO SPREAD FALSE HOPES AND RAISE UNREALISTIC EXPECTATIONS. THE ARENA TO FIGHT IN TAKES PLACE AT THE VOTING BOOTHS AND WILL START ***NOW*** FOR THE ELECTIONS OF 2014.
For those that have been around for awhile, they will have heard from past elections over and over again that “this election is the most important election bla bla bla” but this time it’s for real. This election is no child’s play. Why? Why is the election of 2014 the most critical of all previous elections?
Here’s the facts:
1. Civil War within GOP.
2. Primary opponents to GOP House Speaker and Senate Minority leader. Incumbents AKA ruling class have been blindsided and have cast their lot to fight the Tea Party.
3. Boehner is pissed off and has hired McCain’s amnesty hack. Boehner is compromised and will go to prison (I believe) if the Obama thugs move on him, and he knows it. This is Mafia people; this is not the American way, this is the Chicago way.
4. Boehner will ignore the Hastert rule and ram immigration reform down the throats of the American people, piecemeal or otherwise. He is a sellout and they have something on him that will send him to prison, probably a campaign cash misappropriation of some sort. NSA? Hell yeah, they got the goods on him. They will TOM DELAY him.
5. How long will it take 11 to 20 million illegal aliens to become US citizens? About 3 to 5 years. How long will it take them to register to vote? About 3 to 5 WEEKS. Will lack of citizenship stop them from registering? Let me ask you this, did a border and a country’s laws stop them from illegally settling? I know Mexicans. I can guarantee you they will be registered in time for the 2014 vote.
This is the play people. It’s the immigration reform bill that should be fought with every ounce of passion and fervor left in any person that loves America.
FIGHT THE IMMIGRATION REFORM BILL! Do not kick back and table talk about these weak ass lawsuits. They are not going to save America, not even close.
We should all be students of Stephen Sharansky and the vote fraud of the 2005 governor election in the state of Washington:
http://soundpolitics.com/archives/2005_04.html
Read and study the archives. There should be a book, or a manual. I don’t think there exists one but it would be handy to have one. But we have the archives. In these archives you will find how county election offices are under control of criminal democrats and even prison convicts! Convicts on parole are hired to bring ballots to mail rooms!
Wake up and see what’s coming. Ask yourself how you can personally combat illegals from registering to vote! How can you do it? And you must challenge it BEFORE the elections, not after.
I did not quote a law professor, but an article in the Wall Street Journal. I also provided the link you now post.
Section 1311: state-run exchanges, Section 1321: federal exchanges
Section 1401: premium assistance
Section 1401 pertains to Section 1311 state-run exchanges, it does not pertain to Section 1321 federal exchanges. The law is clear on this.
H.R.3590, Service Members Home Ownership Tax Act of 2009, “An Act To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes” did not raise revenue, it extended the time period of an existing tax credit.
Here is a link to H.R. 3590 as received and read in the Senate and placed on the calendar http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590pcs/pdf/BILLS-111hr3590pcs.pdf
‘The law is effectively meaningless ‘
It’s like we are all playing Barry Bingo. No one knows what is coming next...
Thanks Las Vegas Dave.
What’s your point in any of this?
HR 3590 originated as a tax bill, was gutted and changed to Obamacare and back to the House where it was approved. What’s to challenge? That the House did not originate Obamacare as a tax bill but yet did originate a tax bill that was changed by the Senate to Obamacare and then approved by the House? The House can do anything it likes to a bill once it is proposed. No court is going to overturn the House’s prerogative to approve and pass any bill it wants to.
As for the exchanges, it’s clear in the sections 1311 and 1321 that the federal government can contract and startup a non-profit to setup the state exchange if the state declines to do so. So a court is going to say it has to be a state government run exchange versus a federally backed state non-profit exchange? Again the court is not going to get into how government decides its laws are to be administered. Roberts said Obamacare is constitutional because it’s a valid tax under the 16th Amendment. How the government administers this ‘tax’ as a redistribution scheme is not something the courts are going to waste time with.
The whole idea of wasting time with these lawsuits is for what? To overturn Obamacare? Not going to happen! Then who benefits? Lawyers preying on conservative angst?
The REAL THREAT TO OBAMACARE comes from prospects of the 2014 election where the republicans have a shot at taking over the Senate and then forcing a defunding of the damn thing until the 2016 presidential election.
But what is the democrat’s response? IMMIGRATION BILL! Where they can get millions and millions of instant votes to stop the republican takeover of the Senate and possibly dislodge republicans from control of the House. THIS IS WHERE THE REAL FIGHT IS! These piddly lawsuits are nothing.
I know it’s a lot of reading but laziness should not be tolerated in the fight to preserve American freedoms and its Rule of Law.
From the archives I posted previously:
http://soundpolitics.com/archives/004254.html
SAM REED: NON-CITIZEN VOTES SHOULD STAND
I couldn’t find the Democrats’ original motion, but this Republican response shows that the Democrats filed to exclude any non-citizen votes from the tally of illegal votes in the election contest, unless the non-citizens were challenged before the election.
Secretary of State Sam Reed filed a motion in support of the Democrats’ position:
under the election contest statute as currently written, “illegal votes” do not include votes cast by improperly registered non-citizens1 unless their registration was challenged before the election. For that reason, the Democrats’ motion concerning this interpretation of the election contest statute should be granted
Great. So our unique voting franchise as “citizens” is, in the Reed/Gregoire interpretation of our election laws, mostly worthless. At least Joni Balter can no longer claim with a straight face that “State election officials are not aware of a single documented instance where a non-citizen voted in the governor’s race”.
You know, there’s a point at which it will become tempting for somebody to pay hundreds of thousands of people in Hyderabad to register and vote by mail claiming a permanent address at the King County Elections office.
Premium assistance is specified in Section 1401. Section 1401 pertains to exchanges defined under Sec. 1311, and not to those defined under Sec. 1321. Have you read Section 1401?
Are you saying that we should not fight PPACA and instead fight Amnesty? Why not fight both?
U.S. Const. art. I, § 7. "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." Did H.R.3590 raise revenue? "Yes" or "no".
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