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King v. Burwell, U.S. Supreme Court. Legal Analysis from Hondo
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Earlier today I learned that Hondo is a Legal Expert. Yesterday I was asked by a former Law School classmate what I thought about the issues raised by King v. Burwell, a case that will be heard by the US Supreme Court on Wednesday. Infra, I have copied an article regarding the case and the issues it raises, from the American Spectator. I am sure we will all enjoy Hondo's legal opinion.
The American Spectator: King v. Burwell Is Much Bigger Than Obamacare
John Adams, in a 1775 essay referencing the Roman historian Livy and other sources, wrote that a republic was “a nation of laws, not of men.” As recently as fifty years ago, most Americans would have intuitively understood his point and why it was relevant to their lives. Today, it isn’t clear that the President of the United States, the leaders of the Democratic Party, or the members of our “news” media would grasp the meaning of Adams’ words, much less that they still matter today. We will soon discover if the same can be said of the Supreme Court.
The Court will hear oral arguments this Wednesday in King v. Burwell. The petitioners in this case want the justices to rule that the Obama administration must abide by the provisions of PPACA that govern insurance subsidies. The text of that law, better known as Obamacare, requires that all subsidies must flow through exchanges established by the states. But due to the refusal of 36 states to set up such “marketplaces,” the Obama administration cobbled together federal exchanges in those states through which it is now issuing illegal subsidies.
In other words, the President conducts himself in a manner utterly inconsistent with republican principles and his constitutional oath. Obama obviously believes the law is what he says it is, a delusion evidently shared by his party and the press. He behaves as if he possesses the power to unilaterally change laws and create new ones merely because the opposition party actually opposes his agenda. Adams characterized such behavior as that of “a despot, bound by no law or limitation but his own will; it is a stretch of tyranny beyond absolute monarchy.”
This is, at its core, what King v. Burwell is about. It has nothing do with any “plot to kill health care,” as the New York Times recently put it. Nor does it involve a surreptitious conspiracy to reinvigorate the “states’ rights” movement, as it was described last week in Politico. It isn’t even an attack on Obamacare, though a ruling in favor of David M. King and his fellow plaintiffs would obviously have a profound effect on the future of the “reform” law. It is rather an attempt to prevent the President from doing further violence to the Constitution.
Specifically, it is about the separation of powers doctrine. The Constitution grants the power to tax and spend to Congress alone. Yet the executive branch, under the Obama administration, has brazenly arrogated the power to spend with its IRS rule authorizing the distribution of subsidies through federal exchanges. The original cert petition filed with the Court on behalf of the plaintiffs phrases it as follows: “If the ACA means what it says… the IRS is illegally spending billions of taxpayer dollars every month without congressional authority.”
Moreover, the illegal decision to distribute subsidies via federal exchanges implicitly usurps Congress’s taxing power as well. These subsidies activate the employer mandate and the financial penalties associated with noncompliance. As legal scholars Michael Cannon and Jonathan Adler testified before the House Committee on Oversight and Reform shortly after the IRS rule was promulgated, “It thus triggers a $2,000-per-employee tax on employers and appropriates billions of dollars to private health insurance companies in states with a federal Exchange.”
If the Court permits this usurpation of such crucial congressional prerogatives, the result would be a quantum leap forward in presidential power. This is precisely what the separation of powers was devised to prevent. Yet, as perilous as it would be to permit the executive branch to accumulate more power than it has already acquired since 2009, that is what SCOTUS is being pressured to do. Since the Court agreed to hear King, there has been a concerted campaign by left-leaning legal scholars, politicians, and pundits to push its deliberations in that direction.
Much of this pressure on the Court has been focused on Chief Justice John Roberts, which is to be expected considering his craven ruling in NFIB v. Sebelius. Brianne J. Gorod, of the Constitutional Accountability Center, provides this all-too-typical example in the Los Angeles Times, “When the Supreme Court hears oral arguments in King vs. Burwell next week, all eyes will be on Chief Justice John G. Roberts.… There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.”
Gorod’s point is as subtle as a drone strike. She might just as well have written, “Nice reputation you got there, Johnny. Hate to see anything happen to it.” And, if you doubt that Roberts can be swayed by such tactics, remember that a very similar intimidation campaign preceded his bizarre 2012 ruling on the individual mandate. William Jacobson of Cornell Law School puts it thus: “This pressure reportedly caused Roberts to change his vote, and to join with the four liberal members of the Court in finding the mandate justified under Congress’ taxing power.”
If Roberts is once again cowed, and allows the IRS to rewrite an act of Congress to suit the Obama administration’s political agenda, our President will regard it as a sign that he has safely crossed the constitutional Rubicon. It’s no coincidence that John Adams included Livy among those who influenced his view that a republic was “a nation of laws, not of men.” Livy personally witnessed the events that converted Rome from the former to the latter. If the Court caves again, we will have witnessed the same fundamental transformation of our country.
The American Spectator: King v. Burwell Is Much Bigger Than Obamacare
John Adams, in a 1775 essay referencing the Roman historian Livy and other sources, wrote that a republic was “a nation of laws, not of men.” As recently as fifty years ago, most Americans would have intuitively understood his point and why it was relevant to their lives. Today, it isn’t clear that the President of the United States, the leaders of the Democratic Party, or the members of our “news” media would grasp the meaning of Adams’ words, much less that they still matter today. We will soon discover if the same can be said of the Supreme Court.
The Court will hear oral arguments this Wednesday in King v. Burwell. The petitioners in this case want the justices to rule that the Obama administration must abide by the provisions of PPACA that govern insurance subsidies. The text of that law, better known as Obamacare, requires that all subsidies must flow through exchanges established by the states. But due to the refusal of 36 states to set up such “marketplaces,” the Obama administration cobbled together federal exchanges in those states through which it is now issuing illegal subsidies.
In other words, the President conducts himself in a manner utterly inconsistent with republican principles and his constitutional oath. Obama obviously believes the law is what he says it is, a delusion evidently shared by his party and the press. He behaves as if he possesses the power to unilaterally change laws and create new ones merely because the opposition party actually opposes his agenda. Adams characterized such behavior as that of “a despot, bound by no law or limitation but his own will; it is a stretch of tyranny beyond absolute monarchy.”
This is, at its core, what King v. Burwell is about. It has nothing do with any “plot to kill health care,” as the New York Times recently put it. Nor does it involve a surreptitious conspiracy to reinvigorate the “states’ rights” movement, as it was described last week in Politico. It isn’t even an attack on Obamacare, though a ruling in favor of David M. King and his fellow plaintiffs would obviously have a profound effect on the future of the “reform” law. It is rather an attempt to prevent the President from doing further violence to the Constitution.
Specifically, it is about the separation of powers doctrine. The Constitution grants the power to tax and spend to Congress alone. Yet the executive branch, under the Obama administration, has brazenly arrogated the power to spend with its IRS rule authorizing the distribution of subsidies through federal exchanges. The original cert petition filed with the Court on behalf of the plaintiffs phrases it as follows: “If the ACA means what it says… the IRS is illegally spending billions of taxpayer dollars every month without congressional authority.”
Moreover, the illegal decision to distribute subsidies via federal exchanges implicitly usurps Congress’s taxing power as well. These subsidies activate the employer mandate and the financial penalties associated with noncompliance. As legal scholars Michael Cannon and Jonathan Adler testified before the House Committee on Oversight and Reform shortly after the IRS rule was promulgated, “It thus triggers a $2,000-per-employee tax on employers and appropriates billions of dollars to private health insurance companies in states with a federal Exchange.”
If the Court permits this usurpation of such crucial congressional prerogatives, the result would be a quantum leap forward in presidential power. This is precisely what the separation of powers was devised to prevent. Yet, as perilous as it would be to permit the executive branch to accumulate more power than it has already acquired since 2009, that is what SCOTUS is being pressured to do. Since the Court agreed to hear King, there has been a concerted campaign by left-leaning legal scholars, politicians, and pundits to push its deliberations in that direction.
Much of this pressure on the Court has been focused on Chief Justice John Roberts, which is to be expected considering his craven ruling in NFIB v. Sebelius. Brianne J. Gorod, of the Constitutional Accountability Center, provides this all-too-typical example in the Los Angeles Times, “When the Supreme Court hears oral arguments in King vs. Burwell next week, all eyes will be on Chief Justice John G. Roberts.… There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.”
Gorod’s point is as subtle as a drone strike. She might just as well have written, “Nice reputation you got there, Johnny. Hate to see anything happen to it.” And, if you doubt that Roberts can be swayed by such tactics, remember that a very similar intimidation campaign preceded his bizarre 2012 ruling on the individual mandate. William Jacobson of Cornell Law School puts it thus: “This pressure reportedly caused Roberts to change his vote, and to join with the four liberal members of the Court in finding the mandate justified under Congress’ taxing power.”
If Roberts is once again cowed, and allows the IRS to rewrite an act of Congress to suit the Obama administration’s political agenda, our President will regard it as a sign that he has safely crossed the constitutional Rubicon. It’s no coincidence that John Adams included Livy among those who influenced his view that a republic was “a nation of laws, not of men.” Livy personally witnessed the events that converted Rome from the former to the latter. If the Court caves again, we will have witnessed the same fundamental transformation of our country.
Comments
Yes, I get my information on law from someone who says that. Cause that's what I do.
But last time I checked, the states do have a right to operate in their own best interest and are free to opt out of federal driven programs if not in their best interest.
As someone that worked in the healthcare industry leading up to and during the early stages of ObamaCare, there was widespread opinion that the plan was bad for the healthcare industry ... which considering that 36 of 50 states decided to not operate in a manner consistent with ObamaCare would suggest that they were exercising their desire to act in the best interest of their people.
In the big picture, all that this is is a checking of the executive branch from having too much power. In my opinion, the Obama Administration has consistently acted in a manner that the government knows best and acts accordingly. The reality is that they don't know best and instead are operating in a manner inconsistent with the duties and responsibilities of the executive branch. This lawsuit is just an example of that.
Of course the health care industry is against obamacare, it cuts into their profits. The oath of every government officer is to work for the people. Cutting into profits of multi millionaires to reduce costs for the every day person is a perfect example of upholding that oath.
While Romneycare isn't perfect, it's better than the system before it. And it's accomplishing it's intended goals.
Also that Obama Care cuts into profits for the sake of getting more people on health insurance is not a good argument against it. Too simplistic.
Where did you get that? Why would the health care industry be AGAINST millions of new people paying for health insurance and using its services? Look up the Oregon Medicaid expansion on how expanding insurance among the poor increases health care use and utilization.
Private insurance likes the ACA because, despite the increased costs of high-risk, super-sick people that signed up, young people are forced to purchase insurance which they do not fully utilize. In fact, most of the healthy young people signing up aren't signing up for the bronze plan (which is what you'd probably expect given their use of health care) but the 2nd lowest silver plan which is beneficial for private insurance (they're buying services they're not using). Additionally, private insurance can adjust premiums and coinsurance up and down to improve profits. In fact, since the ACA has passed, private insurance has seen an increase in membership and profits.
Hospitals like the ACA because it means more people are coming in with insurance and not needing to rely on charity care for so many cases. Harborview, which has the highest costs of charity care in the state, has seem it drop drastically, meaning they have a steady and reliable source of income now for these impoverished patients. Here is a graph for local hospitals and the reductions in charity care:
What does this mean? It means the hospital is keeping more of its own money. This is a positive for them, too. And as I mentioned earlier with increased utilization, more people are using their services which helps out even more.
There isn't much data for individual providers or the pharmaceutical industry, but there are more office visits and more prescriptions filled now than before.
Also @Tequilla what kinda job did your TCU MBA get you in the healthcare field? You don't have to answer in this thread, but I'm curious what your role and perspective were given your statement earlier.
But how is he a horrible poster?
I 100% understand people that look at healthcare and hate the concept of profits. I get that there are a lot of people that look at healthcare as a right and not a commodity.
I worked with a lot of very smart people ranging from high end industry experts, hospital executives, healthcare lawyers, etc. Almost universally, people didn't like the ACA.
Here's the problem that I have with healthcare in general:
We create a number of barriers in healthcare to protect the consumer through things like the anti-kickback laws that make it illegal for self-referrals or for physicians to be paid for their referrals. Yet, in the process of doing things like this, we create a number of inefficiencies within healthcare that create higher costs. From where I sat looking at healthcare, I saw so much money wasted tied up in bureaucratic red tape - and that eventually ends up getting passed on to the consumer one way or another. The ACA created even more layers of red tape and one of the things that started happening was that the inability for independent physician practices and other private entities to survive on their own and ultimately creating a mass consolidation within hospital systems.
In general, we need to review the entire healthcare system and figure out what actually makes sense and what doesn't. The system by and large is broken and is outdated with what is required in today's technology driven world.
Second, I think we're talking past each other to some extent. Costs have likely risen for people on the board because they're in higher income brackets; for any college kids or poorer people, costs have likely declined. Wasn't the main goal of the ACA to increase coverage at the expense of strict cost control?
I respect the motives of the people working in healthcare that disagreed with the reforms, their interests and job security are generally tied to increased efficiency and lower costs. I just happen to believe that the old system privileged the healthy and wealthy, and that expanding coverage is essential. It seems apparent now though that you can't do coverage without cost controls.
On what race said about healthcare as a right, it's probably wrong to say that "good" health is a right, but that there should be minimal standards and services.
I know you're not simple enough to not recognize that the real goal and end game of Obamacare is government control via a single payer system. Cost reduction was never a serious consideration, only a red herring put forth by Obama and his minions.
The main goal of the ACA was to slow down the continuous growth of costs for the federal government. Medicare is always growing, and with the aging population transitioning from private to Medicare, there is a need to reduce healthcare costs while also improve health outcomes. Most of the policies and laws that @Tequilla mentioned that the healthcare industry were dreading were in reference to that.
The points of expanding coverage were to provide coverage to encourage appropriate healthcare utilization as a means to prevent ED and hospitalizations for poor people (which would come out of hospital's budgets, like Harborview, which is funded by tax dollars). So the cost control (Medicare) and expanded coverage (Medicaid) are two separate points, really.
In fact, the marketplace doesn't really have any limits on costs except for those inherent in the pressures of an open and free market. In fact, premiums are going down in the market place this year because more managed care organizations are entering the market place after waiting and watching for the first year (among other factors). As Southern mentioned, it's the free market enterprise that's helping control costs in the marketplace.
If you're really interested in this stuff, you should read up on the Oregon Medicaid expansion or the RAND Health Insurance Experiment. Two fascinating studies on how expanding health insurance in the US works and what it really does.