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Obamacare Slowly Succumbs to Its Birth Defects

Slowly sinking into quicksand.

by
David Catron

Bio

July 23, 2014 - 12:02 am
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The supporters of the ironically titled “Affordable Care Act” are attempting to downplay their latest legal defeats by pretending that they are disappointing but inconsequential stumbles in the law’s long march toward the pantheon of nanny state entitlements. These people are whistling past the graveyard. In fact, the president’s “signature domestic achievement” is moribund. It is a congressional crack baby afflicted with multiple organ failures caused by the Democrat addiction to corrupt bargains and unconstitutional edicts.

Yesterday’s appeals court ruling against the Obama administration unequivocally confirms that reality. The plain text of the “reform” law says that federal tax credits and subsidies can only be issued via state-created insurance exchanges. Yet the IRS promulgated an imperial edict indicating that it would also grant them through federally created exchanges. This is what the U.S. Court of Appeals for the District of Columbia Circuit struck down: “[T]he ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established’ by the State.”

Why did the Democrats limit premium assistance to policies bought through Obamacare exchanges established by a state? It was part of a corrupt bargain. In order get the bill through Congress, they had to buy the vote of Democrat Senator Ben Nelson of Nebraska. His vote was bought in the infamous “cornhusker kickback,” but he tried to save face by insisting that the states had to create and run the exchanges. However, 34 states refused to set up these “marketplaces.” This single birth defect will eventually kill Obamacare in those states.

Yet our progressive friends keep whistling. Ezra Klein’s comments are typically clueless: “The Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.” This is the guy who concocted an imaginary conservative legal scholar in order to reassure his readers that the Supreme Court would never agree to hear any Obamacare lawsuit. It has already done so twice. And the Supremes will make the final IRS call as well. Today’s contrary ruling in the Fourth Circuit virtually guarantees it.

Klein demonstrates why Obamacare’s supporters almost always get it wrong where the courts are concerned. They can never quite figure out what these cases are about. On Halbig, they actually think the problem is poor word choice. But that case is no more about grammar or “scrivener errors” than the Hobby Lobby case was about contraception. Burwell v Hobby Lobby was actually about a birth defect that Obamacare has in common with much recent legislation—it cedes congressional prerogatives to bureaucrats who then issue unconstitutional decrees.

Oddly enough, the Patient Protection and Affordable Care Act does not specifically mandate the kind of abortion-inducing drugs to which the owners of Hobby Lobby objected. The list of drugs that caused them to file their suit against the government was drawn up by the minions of Kathleen Sebelius at HHS. If Sebelius, exercising the “wide discretion” granted by Obamacare, had kept that list to only the sixteen types of contraception already covered by the company, the Obama administration would not have received last month’s high court drubbing.

Top Rated Comments   
"Ezra Klein’s comments are typically clueless...“The Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.”

Klein's the guy who said a couple of years ago that the Constitution was over 100 years old and hardly anybody knew what it meant.

The Washington Post finally booted him (or he left when the paper wouldn't finance a new endeavor for him) and started some new gig/website.

Maybe he's just a smart aleck at heart, but comments like the above make him sound like a full blown moron.
12 weeks ago
12 weeks ago Link To Comment
Similar to your point about Ben Nelson, Krauthammer pointed out yesterday that the language in the ACA tying eligibility for subsidies to state exchanges was not poor word choice at all but an effort to compel states to set up exchanges.

Now that the unintended consequences are coming home to roost, those creeps want to claim that the language was merely a technical glitch.

It's amazing that something as obvious as this clear cut language in the Unaffordable Care Act has to be adjudicated at all.

"But Congress has no authority to grant bureaucrats such discretion either way. It cannot simply hand over its powers to another branch of the government...federal agencies are under the control of the executive branch and, by definition, have no power to create regulations that legally bind anyone."

All these extra-constitutional agencies that have proliferated like algae bloom on a weed filled lake are hardly "another branch of government".

Seems crazy that federal agencies, a whole bunch of them but most notably the agenda driven progressives at the EPA, seem to think their rulemaking supersedes Congressional lawmaking.

This growing problem has developed over time but is especially egregious now as federal agencies seem to see themselves as in the employ of the ideological goals of a president and not serving the people at large.

Kathleen Sebelius, the overseer of the 15,000 thousand pages or so of rules and regulations pretending to implement Obamacare (how Hobby Lobby got caught in the net) said as much:

"I don't work for the American people."
12 weeks ago
12 weeks ago Link To Comment
Klein sees the future of Obamacare more clearly than Catron.

Birth defects are only an issue if there's an outside reality in which to recognize failure. Obamacare is RELIGION: It does not have to succeed in any way that rational people define that term. It can reduce the availability of care, raise the costs, and lead to less favorable outcomes for a smaller insured population and it's STILL a success, because it's OBAMACARE.

'Moribund' if you like, but so what?

Of COURSE there are unconstitutional parts but appeals courts are only split if the whole DC Ciircuit agrees with the three judge panel; that's not close to guaranteed. No other circuit has agreed with that panel and unless there is a split the Supreme Court isn't likely to review.

Furthermore the Roberts court (Roberts himself, they say) has already yanked Obamacare back once from the brink, by turning a fine into a tax. The logical thing for Roberts to have said at the time was "But it cannot possibly BE a tax because that feature of the law did not originate in the House where taxes must start." He didn't say that, so that issue is still wending its way and who knows the outcome?

Is there a reason to think he (the court) would NOT buy the argument that the restriction of the subsidies to state-established exchanges was a mere drafting error? That idea is preposterous: EVERY claimed defect of EVERY law can be called a drafting error if the test is what a court wants to do -- but would 'preposterous' stop a Supreme Court that has already supplied an out-of-whole-cloth fix for a fatal defect?

Catron's article demonstrates why Obamacare opponents almost always get it wrong: We assume that the rule of law can be relied on. In fact, Obamacare is alive today because THE RULE OF LAW IS MORIBUND.

Every single 'fatal' defect of the law, constitutional or otherwise, can be papered over by executive or judicial action, so long as Congress is willing to tolerate an executive who will do so and who uses his powers to guide that judiciary.

I assume we've all noted House Judiciary Chairman Goodlatte's statement on impeachment: "No impeachable offenses have been committed."

Obamacare is a failure by any objective measure: It will deliver less for more -- and at an accelerating rate. But while 'we the people' allow this sort of governance to continue we're going to continue to get just that.

Goodlatte has had his seat since 1993 and is strongly favored to win in November.

As to any reining in of the regulatory state, that would require Congressional energy on a level never before seen. As a practical matter it would require cutting the federal reach to something like 1930 scale. Congressional staffs are a tiny fraction the size of the departments' regulation writing battalions: they can only write laws requiring little or no regulatory Hamburger Helper if they write very few and limited laws. How likely is that right now?

Answer: It's not going to happen while we the people tolerate smothering regulation. I see no sign of change now and the after-the-collapse tea leaves aren't even in the water yet.
12 weeks ago
12 weeks ago Link To Comment
All Comments   (41)
All Comments   (41)
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So the Supreme Court knocks down Obamacare based on the funding through the state exchanges. Obamacare disappears. What is the alternative? Conservatives have had years to come with an alternative, with precisely zero result. We all know "free market" in healthcare is a chimera. Where's the alternative?
12 weeks ago
12 weeks ago Link To Comment
We haven't had free market health care since WWII, so how do you know it is a chimera?

Why not give it a chance, for once? This thing obviously isn't working.
11 weeks ago
11 weeks ago Link To Comment
Yes, I've yet to see a real Republican plan as well. In 24 years in the military I learned a few things. A non-exhaustive list:

1) never volunteer
2) don't complain about something unless you have a plan to fix it

Well, Republicans, what is your plan?
12 weeks ago
12 weeks ago Link To Comment
Neither of you two are very well read if you believe there is not a conservative alternative. Let's assume R's really do have no plan; that stance already beats a horrible plan does it not? Since when does having a plan, any plan, no matter how bad, always trump the status quo?? Anywho, thoughtful R's propose an approach emblematic of the word 'conservatism', centered around incremental change. Here a a few of their ideas, in no order.

1) Let's try significant tort reform and see what effect that has.
2) Let's try steering payments towards more 'fee for outcome' and less 'fee for service' - and see what effect that has
3) Let's engage in some insurance reform and see what allowing for across state lines insurance purchases does to costs
4) Let's perhaps try to eliminate the tax benefit of employer based health insurance premiums - and see what effect this has..does it render consumer more aware of what the are buying? It might not, but it makes sense that it would so let's see.
5) We could also see about offering a single tax credit for the purchase of insurance - allowing consumers flexibility to shop for the best deal with this "credit"
6) Let's expand health savings accounts and flexible spending accounts - and see what effect that has.
7) Let's attempt to change the culture - to steer people to rely once again more on friends, family, and their community - and less on the government for essential services. This clearly would take decades.

I hope you get the picture. Conservatives are for incremental change by definition. And we wholly believe that to be a better approach to such a complex industry. Unfortunately we do have a dearth of articulate defenders of these policies, but you two should really read up.
12 weeks ago
12 weeks ago Link To Comment
So, in other words, they have no plan, since you obviously couldn't provide a reference to even a shell of one. So point us to the Republican plan. Surely there is more than a bullet list.
12 weeks ago
12 weeks ago Link To Comment
I don't accept the premise. It is not the job of Republicans to figure out how to do something unconstitutional.

The health system will run cheaper and better when O-care is struck down. The system stilll there, buried under the morass of stupid O-care regulations. If Democrats don't like that, they can offer their next magic alternative.
12 weeks ago
12 weeks ago Link To Comment
Obviously, the writer has never been in a court in NYC. Bows and arrows are LEGAL. Yet any DA down there will try to prosecute, because they're morons! And you'll spend a few days in Rikers while your lawyer puts his finger in the Penal Law book and tells the judge they're legal!
Meanwhile, they scrupulously ignore the laws about bigamy so Muslims can "coexist" with the general population.
Also, women in NYS CAN GO TOPLESS anywhere in NYS where a man can go topless. Yet NYPD, morons, still arrest topless girls.
Too many laws. Too many stupid laws. Too many stupid tools with badges and pens.
12 weeks ago
12 weeks ago Link To Comment
Sissel v. HHS, eh? What's the prognosis for that one?

But the Dems have a political problem if Halbig is upheld by the Supremes: it will harm constituents and governors in BLUE states like Oregon and Maryland that don't have their own exchanges. In that case, I bet Obama will suspend all mandates through 2017, leaving his mess to a hapless Hillary -- or perhaps a ruthless Rubio.
12 weeks ago
12 weeks ago Link To Comment
First, the branch of the government tasked with deciding if administrative law is constitutional, has already decided it is constitutional. Second, there is no law of this size that will not have issue. The only difference is this time you have half a branch of government unwilling to fix any kinks in the law.
12 weeks ago
12 weeks ago Link To Comment
"the branch of the government tasked with deciding if administrative law is constitutional, has already decided it is constitutional."

Two words: Dred Scott.


12 weeks ago
12 weeks ago Link To Comment
and it is disgusting to have people try and play politics with the courts and teh laws. Especially the media, which is so full of bias that it is no longer a press but a cheering section

The news should have been the letter of the law, and the wording, so that all could see it for what it is.


And interesting a liberal on another site called me a lying f*** moron for repeating the pelosi comment that they had to pass the bill to find out what is in it
12 weeks ago
12 weeks ago Link To Comment
If a bill is written and signed into law, and then people don't like it, go back to the process and change the law.

But if you can't trust the words, clearly written, then we have no laws. PERIOD>
12 weeks ago
12 weeks ago Link To Comment
It all depends on what the meaning of the word "is" is, right?

If every word is open to interpretation like that, you're right. We have no laws.
12 weeks ago
12 weeks ago Link To Comment
So what's another challenge to Obamacare mean to the administration? First the recent "setback" in the court will probably be turned around by the full court which is 70% Democrat appointees. Second, with all of the other waivers, deviations and special changes to the law, Congress has done NOTHING, so who's dumb enough to believe that they will do anything this time around?

Liberal courts rule on "intent" not constitutionality, so expect this to be turned around.
12 weeks ago
12 weeks ago Link To Comment
Motorhead3000, in the ingsoc party there are terms peculiar to newspeak, like blackwhite, a word to be applied in two ways, when applied to your opponent, it means someone so stupid and ignorant that they can believe black is white, but when applied to a party member, it means someone smart and proficient enough in doublethink to believe that black is white if that is what the party demands. Thus I would posit that only an idiot could think that federal and state are the same, unless the party says so.
12 weeks ago
12 weeks ago Link To Comment
What stunned me yesterday was the verdict from the 4th Circuit Court that basically stated that the term "State" actually meant both federal and state when the entire law was examined. But this view acted like the intent of the Demorats in the Senate was not voiced and plainly written for them to read. They acted like the law was written hundreds of years ago and the intent was murky at best and a bad choice of words at worst. If this is the nature of our federal courts and the corrupt trend, then as a nation we are doomed to third world status where the courts are governed by who you know and which party you belong to.
12 weeks ago
12 weeks ago Link To Comment
funny when a state goes to enforce immigration laws, the admin knows exactly the difference between state and fed.
12 weeks ago
12 weeks ago Link To Comment
I dealt with it constantly with labor arbitrators, many of whom are lawyers or law professors. If allowed to they will hold that all language is inherently ambiguous and the learned arbitrator must give the words meaning in the context of the parties' actions and bargaining relationship - which is a lawyerly way of saying they're smarter than either of the parties so they'll give it the meaning they want it to have or in the jurisdictions where they're selected by opposite strikes, they need to keep the balance between deciding for the union or deciding for the employer so they can keep working. Anyway, there are books on the sort of thinking that leads to this judicial arrogance. In labor relations practice the primary hornbook is "The Common Law of the Workplace," the very concept of which I deny. The chapter on contract interpretation was written by the late Prof. Carlton Snow of Williamette Law and he waxed prolix about ambiguity and discerning the intent of the parties. I 86'd him from hearing State of Alaska cases in the early '90s, even before the book came out because he never met a fired employee he didn't want to put back to work or a management decision he didn't want to modify, but he could dress that substitution of judgment in some fancy legalese.
12 weeks ago
12 weeks ago Link To Comment
"they need to keep the balance between deciding for the union or deciding for the employer so they can keep working"

It's a shame when "fairness" is "how often does he decide my way" than whether it is actually fair.
12 weeks ago
12 weeks ago Link To Comment
Art, from your post it sounds like you have had so much experience in these matters and speak from experience.

Thank you for the post.
12 weeks ago
12 weeks ago Link To Comment
Thank you for the kind words. My name is on the appearance line of hundreds of labor arbitrations and labor board decisions and most of the seminal labor case law in the Alaska courts came from arbitrations or labor board hearings that I or my co-workers and later subordinates did at the administrative level so the AG's Office could take them through the courts. I've been around the block a time or two.
12 weeks ago
12 weeks ago Link To Comment
According to the Statists "Words mean things unless they don't".
12 weeks ago
12 weeks ago Link To Comment
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