May 12, 2016

"Federal judge rules Obamacare is being funded unconstitutionally."

"The Constitution says 'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,' said Judge Rosemary Collyer, yet the administration has continued to pay billions to insurers for their extra cost of providing coverage for low-income Americans. 'Paying out Sec. 1402 reimbursements without an appropriation thus violates the Constitution... Congress is the only source for such an appropriation, and no public money can be spent without one.'"

51 comments:

zipity said...

The Emperor Obamessiah will be displeased...

David said...

Don't worry, John Roberts will take care of this. He loves Obamacare.

Roughcoat said...

Is this something?

DanTheMan said...

Quoting the Constitution just tells us what the words are. What the words mean might be completely different. As we have seen....

Owen said...

That Judge better be careful. Tragic accidents can happen in the shower or on the stairs.

HoodlumDoodlum said...

How quaint.

Humperdink said...

Two things stood out to me in the article:

> "The judge's ruling, though a setback for the administration, was put on hold immediately and stands a good chance of being overturned on appeal."

> "(Judge) Collyer is a George W. Bush appointee nominated in 2002."


Which is why our Republic, soon to be banana Republic, is headed down the tubes. It would seem to a layperson like me that every major judicial decision is not rooted in the constitution, but by some political point of view.

The serfs will rise up at some point. It may begin with Trump (doubtful), but it will surely happen down the road.

PS: I see Texas GOP has a secession vote scheduled. It won't pass, but seeds are being sown. And NC is now suing the feds. Good times.

Sebastian said...

The judge needs to read Tushnet and get with the program.

AprilApple said...

My insurance premiums have skyrocketed and my insurance coverage is crap.
No docs in-network. I pay dental out of pocket now. Insurance isn't even worth it.

Thanks, democrats. You truly are economic morons.

Brando said...

"Don't worry, John Roberts will take care of this. He loves Obamacare."

I was thinking the same thing. If this gets before Roberts, his first thought will be "okay, how can I keep this law going...?"

What's weird is I can't think of any other high profile cases where he sided with the lefists. It just seems he really likes Obamacare.

HoodlumDoodlum said...

I mean, isn't the answer (always) just to shout "general welfare, general welfare!" wave one's hands, and walk away?

See, because that's Article 1 Section 8, and the appropriations language is Article 1 Section 9, and 8 comes before 9, so case closed.


More seriously, though, didn't NFIB v Sebelius take care of most of this problem? Congress has an implicit ability to spend and the ACA has language allowing the different (executive) departments to take actions necessary enact the provisions (well, really, goals) of the ACA. Congress ceded power to the agencies to get things done (set policy that has the force of law) and the Courts haven't had much of a problem with that (from a separation of powers angle), so I'm not sure why this should be different.
NFIB v Sebelius held that since it is possible to construe provisions of the actual law as a tax (despite the law itself saying something different) and since the Constitution permits such a tax it "was not [the Court's] role to forbid it." Some of us found that to be pretty terrible reasoning...but it's now the law of the land.
Why would similar logic not work in this case? The Constitution forbids spending w/o specific appropriations, but it's reasonable to assume that the people who drafted and passed the ACA wanted reimbursements to insurers to be a part of the ACA's overall plan (since the ACA wouldn't work as sold without such payments--similar to how it wouldn't work w/o the penalty, er, I mean, individual tax mandate)...and since spending (with proper legal appropriations) is Constitutional it must not be the Court's role to forbid this spending even though technically it's being done w/o specific legal appropriation.

Right? Once you decide you don't have to strictly construct the text of a law and instead can just assume it to be OK and construct/invent ways to find it Constitutional I'm not sure why anyone would imagine that the actual text (or lack of specific legal provisions you'd otherwise need to have) matter.

PLUS, of course, the same Justice-swaying arguments apply--if the law was overturned or if the payments were held to be unconstitutional then the whole ACA will crumble and huge numbers of children (and women) will once again die from a lack of health care. Won't anyone think of the children!?

David Begley said...

AprilApple

You figured it out. ACA is a giant insurance company bailout/subsidy in cahoots with the government.

Todd said...

AprilApple said...

Thanks, democrats. You truly are economic morons.

5/12/16, 1:58 PM


Well some are. Others are getting exactly what they hoped for.

David said...

Don't worry, John Roberts will take care of this. He loves Obamacare.

5/12/16, 1:37 PM


That popped into my head too. Sad, but true...

So, the judge issued his order and immediately stayed it? WTF!?!

Collyer issued an order stopping further reimbursements, but delayed its implementation while the case is appealed.

At that time, it had not been appealed as it was just ruled on or is there some mechanism that forces an automatic appeal? Is it not up to the losers to file the appeal? As he stayed it, does the Government actually need to appeal? It is currently on hold so they don't actually need to do anything to keep it stayed, right? Again, WTF?!?

Sebastian said...

Obamacare may be funded unconstitutionally by Obama but, as AA has just informed us, it is Trump who has given signs that he doesn't understand the role of law in these United States. So let's focus on the real problem here and wait for the Chief, who so clearly understands the role of law in the United States, to do his calling-balls-and-strikes thing

Basil said...

How is it exactly that it took her two years to make this one sentence holding and she then stays it so that Unconstitutional spending can just keep right on happening?????

This is a loss disguised as a win for the Constitution. Her decision will stay stayed until the end of the current administration and then be mooted out be changes to the law. (or an appropriation from the Ryan/McConnell RINO bailout corporation.

It will never even get to the point where Chief Justice Roberts has to invent another entirely new school of philosophy (law does not get him there with the Sibelius opinion)to uphold the expenditure.

So, its expenditures without appropriations all around. Hope the Army gets going with theirs. New planes, anyone?

deepelemblues said...

Can't wait for Roberts' ruling... "It is not the place of this court to pass judgment on the constitutionality of government actions when the Northeast and West Coast political commentariat will say mean things about me if I don't vote the way they want..."

jaydub said...

He has a pen and a phone, so none of this constitution talk is relevant.

Nonapod said...

I agree with Basil. I'm skeptical that anything will actually ever come of this. When it comes to massive bureaucracies like the US Gov, if a thing is currently being funded, it usually takes an unimaginable effort to defund it. Constitutional legality doesn't seem to enter into it. It's like asking a person to cut off an appendage.

Achilles said...

David Begley said...
"AprilApple

You figured it out. ACA is a giant insurance company bailout/subsidy in cahoots with the government."

And medicaid part B was a sop to the drug companies. Passed by who again?

The ACA is only around because a republican appointed judge did legal somersaults to keep it alive.

It is only funded because Ryan passed Obama's omnibus.

Obamacare was written by Romney, a republican.

Why did those fucking idiot voters vote or Trump?!?! The GOP has been so ... what is the word? Conservative? No it is something else... But Trump is a liberal democrat for sure! And his tax retuuurrrrnnnnss!!!!

The republican party has been a trick on the american people since Bush 1 was nominated and sold us out.

n.n said...
This comment has been removed by the author.
Rae said...

Does anyone not think the USSC will not find a way to make this "constitutional"? I predict that the court will say that because Congress passed the law, they implicitly funded all it's provisions.

What is the role of law when the words of the Constitution and of the various laws passed by Congress don't mean what they explicitly say? Why bother passing laws at all? Congress should be send a ream of paper up to the Supreme Court and have them write it. That's basically what they did in Roe v. Wade, after all.

n.n said...

Another apostate of the State-established pro-choice church.

Romneycare had two mothers. It was conceived by Republicans, then "planned" (i.e. cannibalized) by Democrats. As was its Posterity, Obamacare, which was birthed by Democrats, and rescued from a late-term abortion by Liberal pleas and a Moderate consensus. The health of millions of American babies, however, were neither affordable nor a caring act, to be replaced by unwanted and inconvenient emigres and refugees from progressive wars, impulsive regime changes, and politically convenient abandonment.

Anyway, beware overlapping and convergent special and peculiar interests. Also pro-choice religion instructed by gods from the twilight zone and their liberal priests in the judiciary.

cubanbob said...

Congress is also required to pass budgets but hasn't done so in eight years. Now one can argue charitably that a continuing resolution would sort of be OK since it merely continues funding what was previously budgeted for but ObamaCare was passed and funded without ever being budgeted. Not saying the President Trumpy will do such a thing but presumably he could simply impound whatever funding is being currently being spent on if the item was never in the last budget since without a budget Congress never appropriated the funding and therefore Trumpy wouldn't be be impounding an appropriated budget item. This ruling has ramifications beyond ObamaCare. Members of Congress are going to eventually be held accountable for budgets as these games cannot continue to be played forever. Trump might simply say to Congress I'm a businessman. I deal in budgets. Give me one. Until then I won't spend money on things that aren't budgeted other than what I deem to be absolutely imperative to be funded. So he shuts the government down and blames the Congress for not doing its job simply because they are too cynical and gutless to make a stand. A country that could elect him would buy that argument.

David said...

But . . . but . . . but . . . . . . . empathy.

CWJ said...

Is there anything about Obamacare that isn't juryrigged legally? Like many above, I doubt this ruling results in any actual constraint upon the ACA. Still, those emanations from the penumbra are working overtime.

Fernandinande said...

We the People of the United States, in Order to insure Insurance, do ordain and establish this Constitution for the United States of America.

1. The powers not delegated to the United States by the Constitution are reserved to the United States.

2. The manufacture, sale, transportation or use of intoxicating substances within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for philosophical, medical or entertainment purposes is hereby prohibited.

3. Everything is interstate commerce.

Owen said...

Todd and Basil get the prize for earliest BS detection. The Judge issues her ruling and immediately stays it pending appeal? As in: unsuccessful appeal? And so the loser here has zero incentive to bring the appeal or in any event to do so with any speed. It will be a cold day in Hell before this reaches a circuit court; and the same game can be played there. So this is just a farce, but a particularly cowardly one.

It's as if we are living in Pretend Law Land. The discussion up-thread about the lack of a Federal budget is further evidence that nobody is being serious about any of it.

Some years ago William Frankfort, professor of moral philosophy at Princeton, wrote an instant classic called "On Bullshit." It was brilliantly funny but also dead serious, and it describes this attitude of frivolous contempt, of contemptuous frivolity. It was bad in his day, and worse in ours.

robother said...

A lawsuit by one elected branch of government against another is the prototypical case for the SCOTUS to apply the "political question" dodge (or some "standing" version of same).

On the other hand, if the Executive is literally spending without any Congressional appropriation, it reduces Congress's power of the purse to a legal fiction. (That position would certainly fit in with Obama's previous argument that he has the power to borrow above the Congressionally set debt limit.) John Roberts' judicial creativity will be taxed to find a way to reverse this ruling.

Owen said...

Harry G. Frankfurt, "On Bullshit," 2005. A must-read.

Ignorance is Bliss said...

robother said...

John Roberts' judicial creativity will be taxed to find a way to reverse this ruling.

If it gets overturned at the appellate level then he won't have to do anything, the overturning will stand with a 4-4 supreme tie.

Hagar said...

The Constitution is all well and good, but still depends on persons of good faith being elected, or appointed, to office.

tim in vermont said...

Just call Paul Ryan, he will clear this up for little Hussein in an instant.

tim in vermont said...

The last decent shot we had at Obamacare was for the Democrats to open it up for fixes of those parts even they found obnoxious in a way that we could use our new majorities, elected largely in a negative response to Obamacare, to make other changes.

Paul Ryan threw that away as a dream of drooling troglodytes, I can only guess, since he never explained himself to the people who put the speakership in Republican hands, us voters.

Hence Trump.

tim in vermont said...

and Whence Trump.

Dan Hossley said...

Well, it's about time.

Eric said...

This seems pretty clear to me (a nonlawyer). What does a constitutional law professor think?

The Drill SGT said...

So Althouse, doesn't this mean that numerous people in HHS, Treasury, and OMB may be in violation of the Anti-Deficiency Act and subject to civil and criminal penalties if convicted of spending money that was not appropriated?

PUBLIC LAW 97-258—SEPT. 13, 1982

Lance said...

Don't worry, John Roberts will take care of this. He loves Obamacare.

He probably won't have to. The case is going to the D.C. Circuit next, which is packed with Obama appointees, which will likely strike down Collyer's ruling. Then it'll be appealed to the SCOTUS. If it arrives there before Scalia's replacement has been confirmed, the court will split 4-4 leaving the D.C. Circuit ruling in place. Or the Clinton-nominated replacement will throw the vote to the Democrats. Or the Trump-nominated replacement, who will be squishier than Kennedy, will throw the vote to the Democrats.

Alex said...

Elections matter, for those who think it makes no difference between Trump/Shrillary.

The Godfather said...

There's a good post about this decision by Jonathan Adler on Volokh Conspiracy.

For our Trumpists who think that the GOP does nothing but lick Obama's boots, this case arose because Congress (controlled by the useless Republicans) refused to pass an appropriation to fund a portion of Obamacare that (arguably) required an appropriation, and then sued in federal court when the Obama Administration nevertheless funded that portion of the Act. Give them credit when they do the right thing, for crying out loud!

The case now goes to the DC Circuit, which Obama packed with liberal judges because the Republicans failed to prevent that. The odds are that the DC Circuit will reverse, at least on standing grounds, and the Supreme Court, as presently constituted (no better than 4-4 for constitutional limits) would not reverse that ruling. However, it may take awhile for the case to get to the Supreme Court, so who fills the vacancy on the Supreme Court may be crucial. If I thought Tromp was comitted to appointing Ted Cruz to the Court, I think I'd vote for him. If Hillary! wins there's no hope for constitutional government for at least 4 more years.

Real American said...

John Roberts will just pretend the Constitution is just kidding and it will all be OK.

Michael K said...

"John Roberts will take care of this. "

Obama has packed the DC cIrcuit. It will never get past that. The USSC will do another 4-4.

Next year with Trump apppointing someone.

DavidD said...

Well, duh; then again, "What difference, at this point, does it make?"

cyrus83 said...

Even if this ruling is ultimately upheld...what exactly are the consequences? The payment has already been made, and the insurance companies have already paid it out to their provider networks. Any attempt to recoup the funds from the insurance companies will likely drive them to bankruptcy court.

And it's not like Obama or anyone in the administration will ever be charged with a crime for this or have to make restitution for what amounts to theft from the public purse.

However, if President Trump comes along, Democrats may regret this precedent of running roughshod over constitutional checks and proper procedure, because Trump is just the kind of man who seems like he'd be perfectly happy to ignore them to get what he wants - the kind of candidate I think many people assumed the Republicans would never nominate.

Birkel said...

This case will not get to an eight member SCOTUS. These things take longer, procedurally, than that. And the House would likely stall if President Trump were to be elected.

4-4 is not a possibility.

DrSquid said...

Late to the discussion and only tangentially on topic but, here's an Obamacare tale.

Had a new patient today former heavy smoker who's worried he may have throat cancer because he had a focal irritation low in his pharynx for months. He was pretty worried and has been pursuing this issue all year, "ever since I finally got some insurance". He has seen a GI doc who did an endoscopy and advised he he has pretty bad reflux. He's buying over the counter Nexium for >$100 month because his bronze level O-care plan doesn't have any drug benefit, or in fact any benefit at all until he exceeds $4500 in costs. After that it will pay 65% of his expenses. His premium is $586 dollars a month. I examined him and concurred with the reflux diagnosis but also found a poorly defined nodule L mid jugular chain which he had been unaware of. Ordinarily such a finding, particularly in a smoker, means CT scan neck as soon as practical. In his case I'll hold off spending several hundred more of his money on a vague finding like this and we'll check again in a month.

This gentleman is independent lawn care operator and his elation at finally having health insurance is long since gone away. He was actually rather agitated by both his fear of a serious disease and the financial difficulties that his insurance was causing him. In the fifth month of this year he would have greater that $2900 still in his pocket (the monthly premiums) without any help from the ACA, and with no resources at all he could still be treated by the strongest hospital in this community if he should prove to have cancer.

And next year his bronze plan is going away.

Can't say I'm seeing this predicament everyday, but it is becoming quite common to find patients who have genuine health care issues and discover that despite having very expensive insurance they can't afford to get themselves taken care of. I'm not all surprised the Obamacare is total failure, I'm very surprised at the lack of outrage from the citizenry. Supreme court fights over ACA generate bemusement and academic interest. Thousand and thousands of real people paying millions and millions of dollars for insurance you couldn't have sold at gunpoint 5 years ago? Crickets.

Birkel said...

DrSquid:

You should not call what those people have insurance. That is a misnomer. What they have is a tax.

On that, CJ Roberts was correct.

Birkel said...

And it is the working, or lower middle class, that is taxed into government dependence. This is the socialist playbook.

Rusty said...

How much public treasure have we wasted on this fiasco?
Shut it down.

damikesc said...

People asked if Roberts ruling led to Trump. I'll argue one part absolutely did.

When the Democrats SPECIFICALLY AND REPEATEDLY said that the mandate was not a tax. They said it publicly, loudly, over and over. And the SCOTUS said "Well, actually, it is a tax --- so it's legal."

In what other line of work can somebody utterly lie like that and have nothing done. If a car company said "This car does not blow up"...but then they all blow up, you wouldn't see courts trying to protect them.

I've also wondered: Congress has to authorize spending --- but is the President actually required to spend the money. If Congress authorized a billion dollars for something but it can be done for half of the price, is the President still required to spend it all? I assumed Congress' budget was that you cannot spend more than this amount...not necessarily that you MUST spend all of this amount.

Rusty said...

You'd have to be an idiot to believe it isn't a tax.
Oh. wait...............