From the Rule of Law to the Triumph of the Will

 

shutterstock_203668402The arguments by which the Obama administration is countering lawsuits that seek to limit Obamacare subsidies to participants in “exchanges” established by states—a limit that is specified in the Obamacare law itself—have raised the outcome’s stakes. Administration officials argue that the plain, unmistakable, uncontested language of the Affordable Care Act (ACA) is less important than what they want the law to mean, and that hewing to its words would deprive millions of people of the subsidies that the administration had granted them regardless of those words. Therefore the courts should enforce what the administration wants rather than what the law says.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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Toward a Practice of Bodycheck Constitutionalism

Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from mistreatment by the bully on the block. How about throwing some weight instead?

Senator Ron Johnson’s fists are stuffed in his pockets as he runs across the Capitol Plaza to the pillared edifice where parental figures in black robes dispense constitutional wisdom evidently inaccessible to the rest of us. The Wisconsin Republican is suing President Obama over the administrative agreement that protects members of Congress and their staff from the legal requirement—which, by the way, was the product of asinine posturing, but which is also, you know, law, which you can tell because it bears the President’s signature—that they purchase insurance on the Obamacare exchanges.

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The Road to Progressive Dhimmitude

Barack Obama Sworn In As U.S. President For A Second TermIn the recent Hobby Lobby Case, Justices Elana Kagan and Sonia Sotomayor said that corporations that don’t want to pay for abortions should simply not provide any health insurance: “But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all?” Dissenters from the official line must pay a tax. That sounds familiar.

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Obamacare, the NSA’s Metadata Collection Program, and the Separation of Powers

US-POLITICS-OBAMA-RETURNThe brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation.

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The Dead Letter of the Law

A recent report from the Wall Street Journal flatly stated that with “so many unilateral executive waivers and delays . . . ObamaCare must be unrecognizable to its drafters, to the extent they ever knew what the law contained.” As Richard Epstein memorably put it, this amounts to “Government by Waiver.” In the case of Obamacare, the waivers and exemptions go to the heart of the bill itself. Healthcare coverage mandates for companies have been waived until 2015, and now word comes that the individual mandate has been quietly waived indefinitely for those individuals whose plans were cancelled and who cannot find affordable insurance on the exchanges.

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If the Obamacare “tax” exceeds the cost of insurance, it becomes a unconstitutional “penalty”

In NFIB v. Sebelius, the Chief Justice applied a saving construction to the Affordable Care Act’s penalty, and treated it as a tax, to uphold its constitutionality. (Thom Lambert has a great piece in Regulation Magazine on this topic). But, the Chief Justice placed limitations on the application of the saving construction. The first such limitation stated that because the cost of the “tax” is less than the cost of insurance, a person has a legitimate choice, and there is no coercion:

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The Pen, the Phone—and the Constitution

President Obama and his advisors have told us that he can work around a purportedly obstructionist Congress by using what they claim is legitimate executive authority exercised by “pen and phone.” The phrase is meant to put across the idea that the president can get things done by signing off on various formal and informal executive initiatives, and cajoling Americans within government and without to act according to his vision. White House advisor Dan Pfeiffer, who is credited with inventing the phrase, recently explicated its meaning by observing that in an era of divided government, a Democratic president cannot easily get his way when Republicans control Congress. In order to “move the ball forward” on the president’s agenda, the deployment of “executive power” is required, according Pfeiffer.

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Obamacare and Government by Blog Post

One of the more disconcerting aspects of following the Affordable Care Act, beyond the numerous delays and waivers announced weekly, has been the cavalier approach by which the government announces these changes. To say nothing of the merits of these significant changes, it is often difficult to find out why and how the government has justified these decisions. More often than not, the explanation will come in a blog post on the Department of Health and Human Services blog (often on a Friday afternoon). Or, perhaps if we are lucky, there will be a handy PDF explaining the changes in more detail.

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Does Obamacare Secure the Blessings of Liberty?

During oral arguments in NFIB v. Sebelius, the Solicitor General of the United States, charged with defending the Affordable Care Act, made the argument that the law actually promotes liberty. As I retell in Unprecedented,  Solicitor General Verrilli drew together a connection between freedom and health care security.

Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.

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