March 24, 2014

"Unlike the challenge to the individual insurance mandate, Halbig v. Sebelius involves no great questions of constitutional interpretation."

"The plaintiffs are merely asking the judges to tell the Administration to faithfully execute the plain language of the statute that Congress passed and President Obama signed."
Federal judge Paul Friedman, a Clinton appointee, ruled in favor of the Administration in January. But the three-judge D.C. Circuit panel may be another story. It includes Judges Thomas Griffith (a George W. Bush nominee), A. Raymond Randolph (George H.W. Bush) and Harry Edwards (Jimmy Carter). The fear of an adverse panel ruling is one reason that Senate Democrats broke the filibuster rule to pack the D.C. Circuit with three more liberals this year. If the Administration loses at the panel level, it will ask for an en banc ruling that it thinks it will win and thus delay any Supreme Court judgment by many months.

69 comments:

gerry said...

Why should anyone care what the words dictate! Rule of law be damned! Full speed ahead!

Real American said...

so we're all acknowledging now that Democrat appointed judges are nothing but partisan hacks on the bench who make the law up as they go along to suit the left wing political agenda.

Michael K said...

"A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”

We're losing it.

cubanbob said...

If willful refusal to enforce black letter law is not a constitutional question then nothing else is.

Fen said...

Its settled law that can be changed on a whim.

Dems: "ObamaCare is whatever we want, whenever we want." Today's hanging chad counts as a vote, tomorrow it doesn't.

The next POTUS should follow Obama's precendent - pick up pen and phone, grant universal waivers from ObamaCare under Equal Protection.

Paul said...

"Oh the games people play now
Every night and every day now
Never meaning what they say now
Never saying what they mean"

Let's open for a super majority of Republicans in Both Houses.

Then if Obama does not follow the law... IMPEACH HIM.

Then Buffoon Biden will get the message as he becomes President.

RecChief said...

surprised they even have standing. I was beginning to wonder if anyone in the world had standing.

cubanbob said...

Just imagine the howls from the left if the next Republican Administration were to act this way with respects to labor law and environmental law.

RecChief said...

"so we're all acknowledging now that Democrat appointed judges are nothing but partisan hacks on the bench who make the law up as they go along to suit the left wing political agenda."

It's been like that for a while in the Supreme Court. Look back on vote prognostications where the writer is a liberal. There is much handwringing about who the "swing" vote will be, who the conservative defector will be, but the "liberal" justices are acknowledged as reliable, solid votes for whatever liberal interpretation comes before the Court.

Pogo is Dead said...

Won't matter if it does go to SCOTUS.

Roberts will side with Kommissar Obama, because the Living Dead Constitution sez so.

RecChief said...

Fen said...

"The next POTUS should follow Obama's precendent - pick up pen and phone, grant universal waivers from ObamaCare under Equal Protection."

I disagree. That would simply codify the lawlessness. And Congress doesn't seem to want to use its one and only power to check the Executive Branch.

Gahrie said...

We're losing it.

We've been losing it ever since the first go around of the Progressives under Wilson.

Repeal the three remaining Progressive Amendments and we can start restoring our republic.

Gahrie said...

"The next POTUS should follow Obama's precendent - pick up pen and phone, grant universal waivers from ObamaCare under Equal Protection."

No...the next president should attempt to restore the proper Constitutional balance of powers.

Ignorance is Bliss said...

There is no great questions of constitutional interpretation, but, as I understand it, there are parts of the law that are written as if the subsidies would be available to the federal exchanges too. I'm not saying that conflict should be enough to allow the subsidies in the federal exchanges, but it is a valid question of statutory interpretation.

There are plenty of other cases where the law is absolutely clear and the administration is ignoring it. But they are not at issue in this case.

Scott M said...

But they are not at issue in this case.

Are you applying that line of thinking to all of the delays? That seems to be the crux of the matter with the ACA.

Levi Starks said...

I find it odd that Althouse keeps bringing up cases and situations of presidential/Democratic lawlessness.
Nobodys listening. I mean we get it already. Obama, has trashed the presidency, and the constitution, and the rule of law. Theres nothing, Nothing that can be done about it. The American Left has spawned a wild child that cannot be disciplined. Honestly the best the left can hope for is that he steals the family car late one night and takes it out and crashes it into a telephone pole.

Ignorance is Bliss said...

Are you applying that line of thinking to all of the delays?

Yes

Ignorance is Bliss said...

I would think an insurer offering individual policies on the exchange would have standing to sue over the individual mandate delay, since they had priced their policies based on the existence of the mandate, and without the mandate they will likely have fewer healthy buyers.

However, I don't see an insurance company suing, because:

A) You probably don't want to piss off the government that will be regulating you.
B) Win or lose, you are going to piss off your potential new customer base, who don't want the mandate imposed on them.

garage mahal said...

I find it odd that Althouse keeps bringing up cases and situations of presidential/Democratic lawlessness.
Nobodys listening. I mean we get it already. Obama, has trashed the presidency, and the constitution, and the rule of law. Theres nothing, Nothing that can be done about it


Impeach? Either Republicans are too chicken or Republicans don't think Obama doesn't deserve to be impeached. Recallers lost taking Walker out of office but at least they had the stones to do what they thought was right.

Scott M said...

Recallers lost taking Walker out of office but at least they had the stones to do what they thought was right.

Disingenuous in that your analogy ignores the elephant in the room. The Wisconsin recallers didn't have to figure in countrywide race riots if they succeeded. If you don't think that would happen if the GOP successfully impeached and convicted POTUS, I've got a bridge I can sell you.

SJ said...

@garage,

or Obama's choice of VP has made Impeachment seem worse than the prospect of continued Presidency by Obama.

garage mahal said...

The Wisconsin recallers didn't have to figure in countrywide race riots if they succeeded.

Similar to the race riots the right predicted post George Zimmerman verdict? Anyways, weak shit. "The Republic is in great peril by a lawless President, but, uh, he's black?"

Michael K said...

"
Impeach? Either Republicans are too chicken or Republicans don't think Obama doesn't deserve to be impeached. "

No, he's the first black president and is immune, under the present situation of affirmative action, to any consequence for the behavior he and Michelle are demonstrating. Do you think Barbara Bush or Laura Bush could have done this China trip? Even if they had considered it, the White House protocol office would have vetoed it.

No, we are stuck with Obama and our only chance is a GOP takeover of Congress to stop his lawless reign. Clinton wised up after 1994 but I doubt Obama is that smart.

garage mahal said...

Chickens.

Michael K said...

"Similar to the race riots the right predicted post George Zimmerman verdict?"

No, the race riots after the Rodney King verdict. The first one, of course, because after the riots the DoJ retried the policemen who saved his life and sent them to prison.

B said...

I see it as a fairly great constitutional question of executive discretion.

cubanbob said...

RecChief said...
Fen said...

"The next POTUS should follow Obama's precendent - pick up pen and phone, grant universal waivers from ObamaCare under Equal Protection."

I disagree. That would simply codify the lawlessness. And Congress doesn't seem to want to use its one and only power to check the Executive Branch.
3/24/14, 10:12 AM"

I disagree. Once the left gets a dose of its own medicine then and only then will there be congressional bi-partisan agreement to curb the executive branch. Once the left feels the heat then they will see the light.

Scott M said...

Similar to the race riots the right predicted post George Zimmerman verdict?

Weak tea. The Zimmerman case was tabloid fare.

garage mahal said...

Weak tea. The Zimmerman case was tabloid fare.

There were all sorts of riot predictions just on this blog.

MadisonMan said...

However, I don't see an insurance company suing, because:

A) You probably don't want to piss off the government that will be regulating you.
B) Win or lose, you are going to piss off your potential new customer base, who don't want the mandate imposed on them.

C) The IRS will come calling.

And variation on A), to be sure.

Matthew Sablan said...

Just because you think something is right, doesn't mean you should do everything to make it happen. That's how you get wastes of time, money and energy like the Walker recall.

Michael K said...

"There were all sorts of riot predictions just on this blog."

I guess I missed them. How about links ?

Matthew Sablan said...

"There were all sorts of riot predictions just on this blog."

-- And Walker was supposed to be indicted by now, according to predictions on this blog.

People exaggerate and are wrong, a lot. Especially on the Internet.

Scott M said...

There were all sorts of riot predictions just on this blog.

Which doesn't affect the strength of the tea when comparing the Zimmerman case to the impeachment and conviction of the first half-black president.

Matthew Sablan said...

[Though, maybe we should say, according to predictions in the comments on the blog, since on the blog makes it sound like we're talking about the front page, not the comments.]

Ignorance is Bliss said...

cubanbob said...

I disagree. Once the left gets a dose of its own medicine then and only then will there be congressional bi-partisan agreement to curb the executive branch. Once the left feels the heat then they will see the light.

And that bi-partisan agreement will last exactly as long as the Republicans hold the Whitehouse. Once a Democrat is in the oval office, it will be no more binding than the Constitution.

Matthew Sablan said...

"Once the left gets a dose of its own medicine then and only then will there be congressional bi-partisan agreement to curb the executive branch."

-- Just like the Gang of Whatever ensured that we'd always be able to filibuster things, right? The simple fact is, until we have new Dem leadership in Congress, the current crop have proven themselves to be feckless and untrustworthy. While Republican leadership may be equally so, it doesn't matter. You don't keep making deals with people who have broken them in the past.

Naut Right said...

If the modern judicial opinion is a mere matter of the ratio of political affiliation, by what standard does the public owe fealty to the ruling?
The old standard was fealty to law, duly passed, properly made in pursuance to the constitution. now that this is passe, I do not owe the courts any difference. It is just personal opinion, dressed up in legalese. I have one, too. Mine is always better.

Levi Starks said...

The lawsuit is intended to force Obama to follow the law he signed.
Seriously when was the last time anyone forced Obama to do anything.

cubanbob said...

"The law says that subsidies will be available only to people who enroll "through an Exchange established by the State."

This is not a minor technicality. While commenters constantly damn Judge Roberts for ruling that ObamaCare was permissible as a tax lets not forget that in the ruling the court did establish there were outer limits to Congressional authority and also lets not forget not every major issue that could arise was heard by and ruled on by the court. Indeed this case could result in the courts limiting the outer limits of just how much leeway the executive branch has in determining it's regulatory authority derived from an interpretation of the underlying statute. Despite the bravado of the Administration I suspect the Administration is very worried that courts will indeed set a limiting principle in regulatory authority and executive discretion.

This 'minor' challenge may well result in neutering the law to a large extent and may well limit a number executive branch agencies regulatory schemes that exceed a clear reading of the statutory text. Such as the EPA trying to convert ponds and streams into navigable waters among others.

Most commenters argue about the politics and ideology of the respective jurists and certainly it is true that those ideologies do tend to color decisions and rulings but lets not forget that despite left-right divide the courts institutionally aren't likely to rule themselves into irrelevancy. Assuming this goes to the Supreme Court and the courts rules against the government that ruling isn't likely to be a 5/4 decision.

Harold said...

Ignorance is Bliss said...

cubanbob said...

I disagree. Once the left gets a dose of its own medicine then and only then will there be congressional bi-partisan agreement to curb the executive branch. Once the left feels the heat then they will see the light.

And that bi-partisan agreement will last exactly as long as the Republicans hold the Whitehouse. Once a Democrat is in the oval office, it will be no more binding than the Constitution.
**************
Almost to the word what I was going to write until I saw it was already written. Rules and laws ONLY APPLY TO CONSERVATIVES AND REPUBLICANS! That's basic political knowledge that everyone should know by now.

cubanbob said...

Blogger Ignorance is Bliss said...
cubanbob said...

I disagree. Once the left gets a dose of its own medicine then and only then will there be congressional bi-partisan agreement to curb the executive branch. Once the left feels the heat then they will see the light.

And that bi-partisan agreement will last exactly as long as the Republicans hold the Whitehouse. Once a Democrat is in the oval office, it will be no more binding than the Constitution.

3/24/14, 11:27 AM

I'm not disagreeing in principal that the Democrats are untrustworthy but fear is a powerful motivator. Imagine a reactionary Republican Administration applying Democrat tactics across the board-from labor law to environmental law, affirmative action law, voting rights law and so on. Four years of or worse eight years of this evil (from their perspective) should chasten them since even if they were to win a trifecta in the following election cycle they have no guarantee they will be in power indefinitely and the reverse again happening to them at a future date.

Mark Jones said...

Pretty to think so, Cubanbob, but instead they'll just turn all their energy to trying to build a permanent coalition of federal clients who will reliably support them in power as long as they keep the gravy train running.

eric said...

"Just imagine the howls from the left if the next Republican Administration were to act this way with respects to labor law and environmental law. "

This is exactly right and needs to be done. There is no other way to get the media and the American public to see how wrong this is. And were I the next President, I'd cite precedent via Obama every single time I did it. Over and over again.

Will it fly with a Republican President? Absolutely not. Because 100% of the media and Democrats will oppose, and a good chucnk of the Republicans will oppose.

But there is no other way to get everyone on board and against this. If we just drop it for 4 or 8 years until the next Democrat comes along, we'll lose our country to this nonsense. We have to make everyone hate it equally.

It's like the filibuster. The Democrats took it away. The Republicans should NOT put it back if they get the Senate.

mccullough said...

Where will the executive branch get the money to pay for the subsidies for policies purchased through the federal exchange?

ken in sc said...

The next Republican majority needs to pass the modern equivalent of Taft-Hartly which corrected some of the FDR over-reaches allowed by the Wagner Act. They need to do versions that cover the IRS, EPA, labor law, energy policy, and affirmative action. The Hatch Act—which was originally passed to counter FDR using the federal workforce as Democratic campaign staff—needs to be reinvigorated.

Also, the Merit System Protection Board needs to be looked at very closely. It prevents almost any disciplinary actions against civil service personnel, such as IRS violators.

cubanbob said...

It's like the filibuster. The Democrats took it away. The Republicans should NOT put it back if they get the Senate."

@eric I agree.

Matthew Sablan said...

I think the opposite. The Republicans need to put the filibuster back, otherwise, all it means is that the Democrats will never want to put it back either. It will just make winning even more important than compromise.

RecChief said...

Here is aquote from a New Republic article titled "Can Liberals trust John Roberts to rescue Obamacare again".

"Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher. "


Not a word regarding whether his decision was grounded in the Constitution, the whole thing is about using the law to preserve a president's achievement, the Chief Justice's reputation, but not a damn word about the Law.

It's generally acknowledged that the liberal justices vote as a bloc. What a country we have become...

RecChief said...

"Impeach? Either Republicans are too chicken or Republicans don't think Obama doesn't deserve to be impeached. "

Or they are more intelligent than Garage Mahal, knowing that articles of impeachment might pass the House, but the Senate, under control of the Democrat Party, would never hold the trial.

And if the Senate changes hands, I wouldn't expect impeachment either. The spectacle of the nominal head of the Democrat Party signing veto after veto is much better politically than a Senate impeachment trial.

Levi Starks said...

You people are arguing about the details of this suit as though the outcome matters. Obama doesn't care. He'll continue to do exactly as he pleases. Who's going to stop him?
Eric Holder?
There is no justice department, It's just Obama's personal police department.
It's just all one big joke.....
Seriously....

cubanbob said...

"Where will the executive branch get the money to pay for the subsidies for policies purchased through the federal exchange?


3/24/14, 1:38 PM"

Mc that is one points I am arguing. Just as the federal government can't impound funds Congress authorized ( getting back to Nixon) the mirror argument also holds true that the executive cant spend funds that statute doesn't authorize the executive to spend. While I am not a lawer and I would welcome lawyers commenting on this blog to offer a legal perspective it also appears to me another challenge to the ACA would come from a tax challenge and commerce clause perspective.

It appears to me that an insured in one of the states that didn't set up its own exchange and had a policy that covered expenses that an ACA compliant policy doesn't cover ( and as a result had an economic damage) could argue that health insurance policies are intrastate commerce and not subject to the interstate commerce clause. The logic being that decades ago Congress banned the sale of interstate health insurance policies and the ACA did not reverse that statute therefore that statute is still valid and thus Congress limited itself from regulating intrastate health insurance plans.

The tax issue speaks for itself. People who are required to file 1040ES quaterly filings in states that opted out of creating their own exchanges may well have the standing now to sue on the grounds they are being required to pay taxes to subsidize a scheme that is contrary to the statute as written. Paging Matt Drudge.

While I am the first to admit I might be wrong it may well turn out that hubris of this Administration might result in the neutering of the ACA but also curb to a large degree the ability of the agencies to engage in mission creep and that would be a very good thing.

Thorley Winston said...

There is no great questions of constitutional interpretation, but, as I understand it, there are parts of the law that are written as if the subsidies would be available to the federal exchanges too.

Like what?

David said...

So Harry's Reid's purpose become clear.

If the Administration wins this case in circuit court, the Supreme Court may deny cert. Presto. Another bullet dodged.

David said...

cubanbob said...
If willful refusal to enforce black letter law is not a constitutional question then nothing else is.


But you can also frame it as a simple question of statutory interpretation and agency discretion. That's what Obama is hoping for.

David said...

Garage: "Impeach? Either Republicans are too chicken or Republicans don't think Obama doesn't deserve to be impeached."

Isn't the lesson of the Clinton impeachment and failure to convict that you don't impeach unless you think you have a good shot at the votes to convict?

The Senate would never convict Obama. For once the House Republicans are not being stupid and you call them chicken.

Pogo is Dead said...

So are all Con Law professors reclassifying their courses as Ancient History?

RecChief said...

"So Harry's Reid's purpose become clear.

If the Administration wins this case in circuit court, the Supreme Court may deny cert. Presto. Another bullet dodged."


It wasn't obvious when he did it?

cubanbob said...

David said...
cubanbob said...
If willful refusal to enforce black letter law is not a constitutional question then nothing else is.

But you can also frame it as a simple question of statutory interpretation and agency discretion. That's what Obama is hoping for.

3/24/14, 2:59 PM

Being that this is black letter law-the term does have meaning- the correct course of action for the Administration to have followed would have been to file a declaratory judgment suit in the Supreme Court along with a seeking of a temporary injection in enforcing this part of the law to expedite the matter. So absent that its a willful refusal to enforce black letter law.

As others have commented here about the DC court of appeals and the supreme Court punting this as a political matter they may very well do that but I doubt it. As I said earlier I don't see the courts institutionally looking for ways to make themselves irrelevant and this case may well be a bridge too far for the courts to ignore.


"The next POTUS should follow Obama's precendent - pick up pen and phone, grant universal waivers from ObamaCare under Equal Protection."

Fen not a bad idea. Better still the next president ought to do so with a twist: apply the law in full and immediately to those who are currently exempt and waive the law for those who are currently subject to it.

Pogo is Dead said...

Personally, I think Con Law professors should reclassify their course as Constitutional Blankslating.
Semester I: Whatever I say goes.
Semester II: Because racism. Or patriarchy. Or global warming.

Jupiter said...

When Obama first ran for President, and the Commie press nattered on endlessly about how smart he was, one of their more ridiculous claims was that he was a "Constitutional Scholar". I remarked at the time, that Obama "teaching" Con Law made him a Constitutional Scholar like changing a tire makes me an auto mechanic.

But I have come to realize that i was mistaken. Obama, or someone who works for him, has studied the Constitution rather carefully, and discerned a massive hole in the system of checks and balances. And now, Obama ( or, more likely, whoever is running the White House while he and the First Ogress take their separate vacations) is driving a coup d'etat through that hole.

Peter said...

"The old standard was fealty to law, duly passed, properly made in pursuance to the constitution. now that this is passe, I do not owe the courts any difference. It is just personal opinion, dressed up in legalese."

So, what do you expect? Perhaps the Constitution was once made up of words, and the words actually had meaning. But since 1973 it's been made up from the emanations from penumbras of the words-which not everyone can see.

So why would you be surprised that judges are now finding gay "marriage" in the emanations of the penumbras of the 14th Amendment: for even though those who wrote and approved it surely meant no such thing, apparently it must have manifested itself there at some later time).

And nwo you're surprised that judges may find that Obamacare may not mean what its text says it means? There's plenty of text there- have you not considered the emanations from the penumbras from some of that text may mean something entirely different?

The Godfather said...

@RecChief (2:22 PM), you said, "Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher."

Look, I was disappointed in Roberts's ruling, but he completely supported the conservative position that Congress lacked the legislative power to impose a mandate to buy insurance. He bent over backwards to save the law by accepting the "penalty" for violating the mandate as a valid tax -- so long as the tax was low enough that it didn't actually coerce anyone to buy insurance. He made it clear that he thought the courts shouldn't void Obamacare and thus interfere with democracy unless the Constitutional violation was clear.

The stakes in the RFFRA cases are not nearly as "high" -- thet require resolving a possible conflict between two federal statutes, not invalidating a major statute. I don't think he'll hesitate to reach the right result.

gk1 said...

I guess the democrat's don't even have the imagination to wonder what will happen when they are out of power. They can't expect this Silly Putty of a law to go unchanged once the republicans are back in office. They need the structure and the rigor of the courts knocking them upside the head.

RecChief said...

@the Godfather,

here is the point I was making when I qouted that article:

the whole thing is about using the law to preserve a president's achievement, the Chief Justice's reputation, but not a damn word about the Law.

It's generally acknowledged that the liberal justices vote as a bloc. What a country we have become...

Kirk Parker said...

RecChief,

"I was beginning to wonder if anyone in the world had standing."

Increasingly I worry that resolving this will involve other positions (kneeling, and prone.)

Kirk Parker said...

Godfather,

"He bent over backwards to save the law "

More discredit to him! No law should require that degree of contortion to "save".

Kirk Parker said...

Everyone knows the Rule of Lenity, right? It's meant to resolve questionable cases in the favor of the Individual vs The Strong Arm Of The Law.

That's why I despise Roberts so much--that "bending over backwards" is the very enabling of governmental tyranny over the "little people" who are just trying to get on with their lives...

Ignorance is Bliss said...

Thorley Winston said...

Like what?

I remember reading something a while back, but can't find it now. The only thing I can find is a law passed 4 days later related to reporting requirements that required the federal exchanges to report information related to subsidies, which doesn't make a lot of sense if the federal exchange has no subsidies. But, being a separate law, that seems a pretty weak argument.