Boom: #Obamacare architect upholds #Halbig decision


**Posted by Phineas

"Obamacare has arrived"

“The end of Obamacare?”

I normally use that graphic as a metaphor for the needlessly disruptive, even harmful effects the Affordable Care Act is having on the American health care system and the millions who rely on it. But the First Circuit Court of Appeals ruling in Halbig v. Burwell (formerly Halbig v. Sebelius) turned the ACA into its own flaming wreck by holding that purchasers of insurance on the federal exchange were ineligible for subsidies, meaning those buyers would be forced to pay the full cost of their new, needlessly more expensive O-care plans.


Some background: When the writers of Obamacare were designing this anti-constitutional monstrosity of a law, it was decided that states would be able to set up their own exchanges, with the federal exchange serving as the “insurance mall” for those that didn’t. To encourage states to create exchanges, it was written into the bill that subsidies for insurance purchases would only be available to those who bought their policies via an exchange “established by the State.” The idea was that pressure from purchasers who wanted those subsidies would force even conservative governors and legislatures to “opt in” to the system.

Trouble was for Obamacare fans, it didn’t work out that way.

Only 14 states set up their own exchanges (and some of those have been such disasters that their states are switching to the federal marketplace). That meant that, under the law, insurance buyers in the federal marketplace would be paying full price for their policies. It also meant that the federal government could not collect the “Roberts tax” (penalties) for not buying insurance, since those taxes were triggered by the availability of subsidies. No subsidies, no tax revenues, which the government was relying on to fund those same federal subsidies. You can just imagine how that prospect thrilled the pols in D.C.:

Panic button

So the IRS, hearing its master voice, suddenly decided it had the power to declare that “established by the State” intended to include the federal exchange, and thus the subsidy money could keep flowing.

Enter Halbig  and its argument that, no, the law meant what it plainly said, and then the First Circuit’s agreement.

The reaction on the Left has been amusing, to say the least. Ranging from shrieks of “judicial activism!!” to whines of “it’s just a typo and you know very well that’s not what Congress intended, meanies!”, they want the full, en banc, First Circuit to reverse the ruling. And, if they don’t do it, then, by golly, it’s on to the Supreme Court, where John Roberts will rewrite the law for us! Or something.

That got an awful lot harder to imagine, though, after the Competitive Enterprise Institute last night uncovered video from 2012 in which Jonathan Gruber, one of the key architects of both Obamacare and the earlier Romneycare, point-blank admitted the plaintiffs in Halbig were right:

The key moment starts at minute 31. Here’s CEI’s transcription of the big reveal:

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.

Per Michael Cannon, Gruber is off on one point, because the “Roberts taxes” are only triggered in states that create exchanges and thus get subsidies. But the core is that this destroys the government’s “congressional intent” argument, because we now have one of the designers saying the limitation of subsidies to state exchanges was the intent of Congress.

Where Obamacare defenders go from here (other than to a bar to drown their sorrows), I don’t know. They can’t give up, because the loss of the subsidies wrecks Obamacare. Can you imagine the reaction when customers on the federal exchange are told they have to pay full price, prices mandated by Obamacare, which was passed solely by Democrats?

I have no idea how the courts will handle this. Assuming the government asks for an en banc hearing, it’s possible the ruling in Halbig will be reversed, thus probably ending the matter, but I’d have to think less so after this revelation. And there is a contradictory ruling from the 4th Circuit, a situation that almost guarantees the Supreme Court would take the case in 2015.

As ST likes to say, stay tuned… popcorn.gif

RELATED: More from Reason. The Federalist on Michael Cannon’s revenge. Mr. Cannon himself points out how Halbig frees tens of millions from an illegal tax. Paula Bolyard reports how Mr. Gruber calls the plaintiff’s arguments in Halbig “nutty,” …er… but they’re his own ideas, too. Oops, again. By the way, did you know 91% of fake applicants for Obamacare can get subsidized coverage? Another reason to kill this thing and bury it under a crossroads at midnight with a stake through it.

UPDATE: This is amusing – four ways in which Obamacare defenders have desperately tried to spin Mr. Gruber’s “speak-o.”

(Crossposted at Public Secrets)

DC Circuit Court of Appeals deals major blow to #Obamacare



Reason’s Peter Suderman has the deets:

The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.

The highly anticipated opinion in the case ofJacqueline Halbig v. Sylvia Mathews Burwell reversed a lower court ruling finding that federally run exchanges did have the authority to disburse subsidies.

Today’s ruling vacates the Internal Revenue Service (IRS) regulation allowing the federal exchanges to give subsidies. The large majority of individuals, about 86 percent, in the federal exchange system received subsidies, and in those cases the subsidies covered about 76 percent of the premium on average.

The essence of the court’s ruling is that, according to the law, those subsidies are illegal. They were always illegal, and the administration never had the authority to offer them. (According to an administration official, however, the subsidies will continue to flow throughout the appeals process.)

The court’s ruling agreed with challengers who argued that the plain language of the law, which in multiple instances limits subsidies and credits to any “Exchange established by the State,” does not allow subsidies to be disbursed in exchanges where a state declined to establish its own exchange and is instead run by the federal government. Basically, the federal government cannot step in and create and run an exchange that is somehow still an exchange established by a state.

Think this is interesting? Come to find out, a different circuit court ruled in quite a different direction on this same issue:

Update 2: A different circuit court ruled today that subsidies offered through federally run exchanges are authorized on the law. This creates a circuit court split, which increases, but does not guarantee, the chances of an eventual hearing by the Supreme Court. It is also possible, and arguably even more likely, that the circuit split will be dealt with via en banc review.

Fasten your seat belts, y’all.

Memeorandum has much more.

‘Big Gulp ban’ struck down by NY State Court of Appeals

My body, my choice

Heh! Photo via Stan Brooks/1010 WINS, as seen on CBS NY’s website.

Bad news for proponents of the Nanny State – via the New York Times (hat tip):

The Bloomberg big-soda ban is officially dead.

The state’s highest court on Thursday refused to reinstate New York City’s controversial limits on sales of jumbo sugary drinks, exhausting the city’s final appeal and handing a major victory to the American soft-drink industry, which bitterly opposed the plan.

In a 20-page opinion, Judge Eugene F. Pigott Jr. of the New York State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

Two lower courts had already ruled against the city, saying it overreached in trying to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. Ruling 4 to 2, the Court of Appeals upheld the earlier rulings.

Mayor Bill de Blasio, a frequent critic of Mr. Bloomberg but a supporter of the soda proposal, said he was “extremely disappointed” by the latest decision, saying it was “irrefutable” that sugary drinks has detrimental effects on health. The mayor said he would review other options for the city to combat obesity, but his team did not immediately specify what steps might be taken.

In the ruling, the judges said the City Council was the proper body to enact a policy of such sweep and complexity as the soda limits. The Council speaker, Melissa Mark-Viverito, opposes the proposal, and she said on Thursday that she was pleased with the court’s decision.

Two big rulings from two courts today reigning in the overreach of power at the federal and local levels. More, please!

Federal judge: Chicago’s gun ban is unconstitutional

Gun rights

Image via Fox News.

A clear victory for staunch 2nd Amendment proponents. Via CNN:

(CNN) — A federal judge ruled Monday that Chicago’s ban on virtually all sales and transfers of firearms is unconstitutional.

“The stark reality facing the City each year is thousands of shooting victims and hundreds of murders committed with a gun. But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment,” wrote U.S. District Judge Edmond Chang.

“Chicago’s ordinance goes too far in outright banning legal buyers and legal dealers from engaging in lawful acquisitions and lawful sales of firearms,” he continued.

Chang explicitly did not rule out other types of regulation, short of a complete ban, in order to “minimize the access of criminals to firearms and to track the ownership of firearms.

“But the flat ban on legitimate sales and transfers does not fit closely with those goals,” Chang wrote.

The judge stayed his ruling to give the city time to file an appeal.

Stay tuned …

CA High-Speed Rail Fail: Judge derails Gov. Brown’s choo-choo?


**Posted by Phineas

"Train wreck"

“Train wreck”

Darn Judge Michael Kenny and his concern for the law! Doesn’t he know he’s standing in the way of the future?

A Sacramento judge put the brakes on California’s plans to build a bullet train after dual rulings Monday blocked the sale of $8 billion in bonds and ordered the rail authority to rewrite its funding plans for the huge project.

Sacramento County Superior Court Judge Michael Kenny ruled that there was “no evidence in the record” to support the California High-Speed Rail Authority’s request in March to sell the bonds from Proposition 1A, a $10 billion measure approved by voters in 2008 that allowed the bullet train project to move ahead.

In a separate but related case, the judge sided with the Kings County Board of Supervisors and two homeowners who sued the rail agency, saying it had failed to detail how the project will be financed, as legally required, before seeking bond money to begin construction.

The judge’s rulings leave the future of the $68 billion project in question. The state has been trying to get the first 130-mile segment in the Central Valley built using $3.24 billion in federal funds and $2.61 billion in Prop. 1A bond money. The rail authority has already signed a construction contract to build the first 29 miles of track from Madera to Fresno.

The judge rejected opponents’ calls for that contract to be rescinded.

The judge’s ruling seems a reasonable one, as he sticks to the question of CHSRA’s authority to sell bonds (1); the contract is a separate matter and, if the State can’t raise the money to pay for it, also moot.

Naturally, this ruling is going to get appealed by proponents of this boondoggle all the way to the State Supreme Court, if need be. Let’s hope they uphold Judge Kenny’s ruling; then maybe we can escape from this fiasco having wasted only $600 million.

I’m not, however, getting my hopes up. The legislature might try to rewrite the law to allow the bond sales. This would be difficult and subject to court challenges, as the original measure approving HSR was a public ballot initiative, and changing it might require another vote, something Brown opposes because the California public has turned against the project. He wouldn’t want to risk a public rejection that would definitively kill his 1930s retro-future dream. Whichever way this goes, it’s going to be a long fight.

As they say, “stay tuned!”

(1) I almost wrote “”bongs.” Fitting, seeing as this is California.

(Crossposted at Public Secrets)

Harry Reid goes nuclear: get ready for “Court Packing Scheme II.” Updated


**Posted by Phineas

"Ready to shoot his own foot off?"

“Bitter clinger to power”

This morning the petty little tyrant also known as Senator Harry Reid (D-NV) did what he has longed to do and finally changed the rules of the Senate to weaken filibusters, the so-called “nuclear option:”

In a move that Sen. Lamar Alexander (R-Tenn.) called “the most important and most dangerous restructuring of Senate rules since Thomas Jefferson wrote them,” Majority Leader Harry Reid (D-Nev.) pushed the button on the long-threatened “nuclear option” today to require a simple majority to move forward President Obama’s judicial nominees.

There were three Democratic defectors — Sens. Carl Levin (D-Mich.), Mark Pryor (D-Ark.) and Joe Manchin (D-W.Va.) — on the rules change, which came to the floor over the block of three judges intended for the D.C. Circuit Court of Appeals.

The rule change only affects court appointments below the level of the Supreme Court and also doesn’t limit filibusters against legislation. Yet. Obama hinted at attacking the legislative filibuster, and you can bet the filibuster against Supreme Court nominees will be similarly brushed aside, should an opening arise between now and the next Inauguration Day.

Many senators and outside observers (including yours truly) commented this morning that this could well come back to bite the Democrats in the behind, once the Republicans take control of the Senate, which could come as early as next year, given their crumbling political position thanks to Obamacare. It seems at first and even second glance to be a shortsighted move, an act of petulance done in spite against one’s own interests.

I think, however, there is a deeper motive.

Reid, for all his faults, is not a stupid man. Or, at least, he’s a skilled politician who can see which way the electoral winds are blowing. He remembers 2010, when anger over the passage of Obamacare cost the Democrats the House and almost lost them the Senate.

But now people are even angrier, now that Obamacare has kicked in.  And it’s only going to get worse for the Democrats, as the web site doesn’t get fixed, the “access shock” kicks in, rates go up even further, and millions who thought their employer-based coverage was safe find out otherwise starting in fall, 2014, just before the elections… See where this is going?

Harry Reid knows the Senate is lost. He’s read the entrails for his party’s fortunes and seen in the not too distant future a Republican House, Senate, and (quite possibly) White House. With the loss of legislative power this entails, Reid has laid the groundwork to do the one thing he can do to protect the progressive agenda in 2017 and beyond: pack the courts with progressive judges.

Court packing was the scheme through which FDR hoped to load up a conservative Supreme Court that had been blocking key New Deal measures with liberal justices who would swing decisions his way. While the plan per se failed, it had the intended effect: the Court was intimidated and, through retirement and changed minds, started to vote FDR’s way.

Reid has the same thing in mind. I would not be surprised at all to see Obama appoint a bunch of appellate and district judges, in order to have them place when Republican measures undoing Obamacare and other progressive legislation are challenged in court. Long after Reid and his majority are gone, these progressive judges would be in place to rule with “empathy” and “fairness” and find new rights in the Constitution that no one else has ever seen there.

But what about the Supreme Court? Wouldn’t they smack down errant lower courts?

You’d better hope Scalia, Thomas, and the other Center-Right justices stay healthy, otherwise this same maneuver will be used to give us, for example, Cass Sunstein, who is a fan of FDR’s “Second Bill of Rights,” or California Justice Goodwin Liu (Be afraid, be very afraid).

Court Packing II, coming your way in 2014.

RELATED: At Twitchy, a video festival of Democrats claiming that limiting the filibuster would be a disaster — back when George W. Bush was president. How times change.

UPDATE: At NRO’s Bench Memos, Curt Levey sees some real bad news in this development —

The immediate impact will be to turn the D.C. Circuit — often the only check on a president’s executive power — into a rubber stamp for Obama’s unilateral rewriting of statutes, his questionable executive orders, his overreaching agency regulations, and his other Nixonian abuses of executive authority.

Over a somewhat longer term, my concern is that the moderating force that was exerted on Obama’s judicial nominations by the filibuster threat is gone. As a result, expect to see more nominations of radicals like Goodwin Liu and a faster remaking of the entire federal judiciary.

Read the rest for some hopeful news.

(Crossposted at Public Secrets)

Vancouver, WA man on gun charge: @VP Biden owes me an apology for bad advice

Biden Owes Me

Vancouver, WA’s Jeffrey C. Barton. Image via The Columbian’s Emily Gillespie.

The Columbian reports:

Jeffrey C. Barton wants an apology from Vice President Joe Biden.

The Vancouver man faces a misdemeanor charge of illegally discharging a firearm from an incident July 15 in which he says he fired a shotgun in the air to chase away three men who were allegedly breaking into his vehicles.

After pleading not guilty July 17 to the misdemeanor charge, 52-year-old Barton said that he was following advice from the vice president of the United States.

“I did what Joe Biden told me to do. I went outside and fired my shotgun in the air,” he said.

Barton’s comment on Biden refers to a question about home defense that Biden was asked in February. Biden responded that Americans don’t need semi-automatic weapons because a couple blasts from a shotgun will scare off intruders.

Clark County Sheriff’s deputies said that’s only allowed in self-defense.

Barton’s comment, dubbed the “Joe Biden defense,” became international news and was the subject of a two-minute segment on “The Daily Show with Jon Stewart.”

He appeared in court this morning. While maintaining that he did nothing wrong, Barton said outside the courtroom that Biden owes him an apology. Underneath a black jacket, Barton wore a black T-shirt with the words “Joe Biden Owes Me,” written in white letters on the back.

“He should really know the law before he starts giving America advice on national television,” Barton said Tuesday morning.

A lot of people will read this and laugh, but I find the case a bit intriguing.  Of course, ultimately it is incumbent upon individual citizens to read up on the gun laws in their respective states so they can know what their specific rights are when it comes to firearms, but by the same token it is incumbent upon our elected officials to be responsible enough NOT give out off the cuff , spur of the moment, unsure “advice” on how best to protect yourself, ward off criminals, and handle your weapons!  From a February HuffPo piece:

During a Facebook Town Hall hosted by Parents magazine, Biden took a handful of questions from readers about gun violence. One questioner named Kate asked how gun owners would be able to sufficiently protect themselves if Congress passed a bill banning certain weapons and high-capacity gun magazines.

“Kate, if you want to protect yourself, get a double barreled shotgun,” Biden responded. “I promise you, as I told my wife, we live in an area that’s wooded and somewhat secluded. I said, Jill, if there’s ever a problem, just walk out on the balcony here, walk out, put [up] that double barreled shotgun and fire two blasts outside the house.”

The vice president said that by firing two shotgun blasts, anyone who might be trying to break in would be scared off.

“You don’t need an AR-15,” he said. “Buy a shotgun! Buy a shotgun!”

Again, Mr. Barton is responsible for his own actions but Vice President Biden should have also had to bear some responsibility for, frankly, his irresponsibility – and he should have done it way back when by clarifying his remarks once he had gotten advice from experts. Self defense is a serious issue that involves serious discussion on a national stage, none of which describes the “advice” Biden gave earlier this year.

(via Memeorandum)

Post-20 week abortion ban in Texas still stands – for now

Texas State Senator State Senator Bob Deuell

Republican State Senator Bob Deuell, who set two pairs of infant shoes on the counter, speaks during a July TX senate hearing on a proposed abortion bill in Austin. Photo via Mike Stone / Reuters

Some news reports erroneously reported early on today that HB 2 – the hotly debated Texas abortion law pro-abortion State Senator Wendy Davis (now a gubernatorial candidate) attempted to filibuster back in June – had been “blocked” in its entirety by a federal judge, leading to a lot of  misinformation being spread initially about the ruling … including by yours truly on social media.   While it’s true that parts of the bill HAVE been blocked for the time being, the post-20 week ban on abortions, which is set to take effect tomorrow, has not been blocked as of yet and wasn’t challenged in this case.  Via the Austin American-Statesman (hat tip):

A federal judge on Monday barred Texas from enforcing a key provision of an abortion law that was to take effect Tuesday.

U.S. District Judge Lee Yeakel’s opinion found that a provision requiring abortion doctors to gain admitting privileges at a nearby hospital “does not bear a rational relationship to the legitimate right of the state in preserving and promoting fetal life or a woman’s health.”

Yeakel also barred Texas from enforcing a provision regulating the dispensing of abortion-inducing drugs for “women for whom surgical abortion is, in the sound medical opinion of their treating physician, a significant health risk.” However, he allowed other parts of the provision, including a requirement for one extra office visit, to stand.


Abortion providers also complained that the law did not give them enough time. Hospitals have 170 days to rule on a request for privileges, but the law was to go into effect 90 days after the special legislative session ended in July.

In his ruling, Yeakel said the rule “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.”

Gov. Rick Perry said state officials will continue efforts to enact HB 2.


The case next heads to federal appeals court, where abortion-related Texas laws have recently prevailed:


One provision of the law, a ban on abortions at 20 weeks post-fertilization, was not challenged and will take effect Tuesday. The limit, with exceptions if the mother’s life is in danger and in cases of severe fetal abnormality, is four weeks earlier than current law.

Another HB 2 provision, requiring abortion clinics meet the same requirements as day surgery centers, does not take effect until Sept. 1, 2014 and is expected to be challenged in court in the future.

It’s anticipated that Texas Attorney General Greg Abbott, also running for Governor, will file an emergency appeal on the ruling with the 5th Circuit Court of Appeals in New Orleans,

Illinois Supreme Court overturns state ban on carrying firearms


**Posted by Phineas

Here’s a surprising victory for constitutional rights in one of the most gun-restrictive states in the nation:

In an unusually forceful and straightforward opinion in the case of People v. Aguilar, the Supreme Court of Illinois unanimously held that the state’s “comprehensive ban” on the “use of an operable firearm for self-defense outside the home” is invalid on its face under the Second Amendment. The NRA had participated in the case with an amicus brief.

The court surveyed the Supreme Court’s recent Second Amendment decisions, as well as state and federal precedents from courts in Illinois. Regarding the significance of the Supreme Court’s opinions, it declared: “neither Heller nor McDonald expressly limits the second amendment’s protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the Second Amendment right to keep and bear arms extends beyond the home.” It also characterized the Illinois law as “a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution….” According to the court, “In no other context would we permit this, and we will not permit it here either.”

And this was in Illinois. Maybe there’s hope for overturning California’s draconian gun laws, yet.

via ST on Facebook

(Crossposted at Public Secrets)

Federal jury rules black people can’t call each other the “n-word” in the workplace


Via the New York Daily News:

A Manhattan jury awarded $280,000 to a black woman who was repeatedly called the N-word by her boss — who’s also black, and claimed he used the vile epithet as an endearing term.

“My voice was heard today,” Brandi Johnson said Tuesday, after the eight-person federal jury awarded her $30,000 in punitive damages on top of the $250,000 it had already ordered STRIVE and its founder, Rob Carmona, to pay her in the discrimination case.

Carmona’s voice was also heard by the jury — on a damning tape recording Johnson had made of her boss chewing her out in March 2012.

In the tape, Carmona repeatedly uses the racial slur against the 38-year-old single mother of two and a co-worker.

“I’m not saying, using the term ‘n—–’ derogatory, ’cause sometimes it’s good to know when to act like a n—–. But y’all act like n—–s all the time,” Carmona said.

When Johnson told her boss she was offended by his language, he said, “You can be offended, but it’s true.”

“You and her act like n—–s. And n—–s let their feelings rule them,” he said.

Carmona didn’t dispute making the comments, but maintained that he was doling out “tough love.”

He testified that he was trying to tell Johnson she was “too emotional,” wrapped up in “the negative aspects of human nature.”

Carmona, who is black and of Puerto Rican descent, said the word has “multiple contexts” in the black and Latino communities, and not all of them bad.

He said the word can sometimes be used to convey love, and used the example of someone saying, “This is my n—-.”

“That means my boy, I love him, or whatever,” Carmona said. Asked if he meant to indicate love when he called Johnson the word, he said, “Yes, I did.”


Johnson says she was fired from her job after talking to higher ups about how she was talked to, and after complaining about the alleged sexual harassment of a STRIVE graduate.

This is interesting, considering a case of this nature involving a white manager calling a black employee the “n” word would be a no-brainer.  This jury, at least, sees no difference in black on black use of it versus white on black.

Your thoughts?


Just say ”no” to the n-word … period. Full stop.