38 Lawmakers Support Ron Johnson's Lawsuit Challenging OPM Rule


    By Hadley Heath

    At the beginning of 2014, Senator Ron Johnson filed a lawsuit challenging a rule from the Office of Budget and Management that gave Members of Congress and some Congressional staff special treatment under ObamaCare. This week, 38 lawmakers joined the lawsuit with him.

    The special treatment lawmakers are getting is this: An amendment (added to the law by Senator Chuck Grassley) in the Affordable Care Act requires them to buy a health plan created by ObamaCare, but this would create a financial burden for Members and staff (much like the financial burden that so many other Americans are facing due to ObamaCare). So the administraiton worked out a way, through issuing a rule from OPM, that lawmakers and their staff could buy an ObamaCare exchange plan... but taxpayers would fund 75 percent of their premiums. This is a deal that no other workers in the U.S. can get.

    The whole point of the Grassley Amendment was to expose Members of Congress to the consequences of the law they passed (and that everyone else must live under). The OPM rule attempts to shield lawmakers from the law's consequences. Sen. Johnson argues in his lawsuit that OPM doens't have the authority to issue such a rule, and that giving lawmakers like him special treatment actually harms him politically, by fueling animosity among his constituents.

    This week 38 other Members of Congress (all Republicans) filed an amicus brief in support of Johnson's lawsuit. The lawsuit has been widely supported by "outside groups" or grassroots organizations that strive to keep Congress accountable. 

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    Lawsuit Filed in Texas Claims ObamaCare Harms Small Employers


    By Hadley Heath

    A lawsuit filed by a Houston-based doctor is making its way through the legal system: Hotze v. Sebelius will be heard before the 5th Circuit Court of Appeals.

    This case challenges ObamaCare with three main claims:

    1. It challenges the mandate to buy insurance as a violation of the 5th Amendment Takings Clause. 

    Remember, SCOTUS has already heard challenges to the individual mandate on other grounds (namely the Commerce Clause and the Taxing Power), and upheld it. This is a new challenge because it relies on a different argument to show that mandates to buy insurance are unconstitutional. The Takings Clause says, "Private property shall not be taken for a public use, without just compensation."

    2. Hotze challenges the passage of the ACA on Origination Clause grounds.

    Simliar to Sissel v. HHS, this case points out that ObamaCare, a revenue-raising bill, originated in the Senate, which is unconstitutional.

    3. This case also makes a federalism argument, pointing out that ObamaCare will result in the redistribution of wealth away from the State of Texas.

    The plaintiffs, Dr. Hotze and his 97-employee wellness clinic, are put between a rock and hard place (like many other employers under ObamaCare) because they must change their HSA-based employer health plan into an ObamaCare-compliant plan. There are costs associated with doing so, but on the other hand, there are penalties associated with not doing so. 

    Keep an eye on this case and others as it advances to the 5th Circuit.

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    Highlights from Hobby Lobby/Conestoga Wood Oral Arguments


    By Hadley Heath

    Did you miss the Hobby Lobby/Conestoga Wood oral arguments yesterday?  Fear not!

    You can read the transcript here. Or, you can check out these highlights below:

    1. Justice Sotomayor comes out swinging against Hobby Lobby's case:

    JUSTICE SOTOMAYOR: Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?  For some religions, products made of pork?  Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well? 


    JUSTICE SOTOMAYOR: 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 the cost of health insurance at all?  These employers could choose not to give health insurance and pay not that high a penalty ­­not that high a tax. [HealthCareLawsuits note: only $2,000 per worker per year]


    2. Justice Alito points out that there are less-restrictive means.

    JUSTICE ALITO:  Are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religiousobjection to it? 


    MR. CLEMENT:  There are ample less restrictive alternatives, Your Honor. 


    3. A skeptical Justice Kennedy asks whether corporations could be forced to pay for abortions.


    JUSTICE KENNEDY:  Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but could be forced in principle to pay for abortions. 


    GENERAL VERRILLI:  No.  I think, as you said, the law now ­­ the law now is to the contrary. 


    JUSTICE KENNEDY:  But your reasoning would permit that. 


    GENERAL VERRILLI:  Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.  It certainly wouldn't be true, I think, for religious nonprofits.  It certainly wouldn't be true for a church. 


    JUSTICE KENNEDY:  I'm talking about a profit corporation.  You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.


    GENERAL VERRILLI:  Well, I think that if it were for a for­profit corporation and if such a law like that were enacted, then you're right, under our theory that the for­profit corporation wouldn't have an ability to sue. 


    4. The government's lawyer admits that birth control is in fact, not free:


    GENERAL VERRILLI: ...The second point is that you're talking about a very open­ended increase in the cost to the government.  Now, we don't know how much that cost would be.  The reason is because, since this wasn't litigated in the lower courts, there's not a record on it.  So I can't tell you what that ­­ what that increased cost is going to be, but it could be quite considerable. 


    JUSTICE SCALIA:  You're talking about, what, three or four birth controls, not all of them, just  those that are abortifacient.  That's not terribly expensive stuff, is it? 


    GENERAL VERRILLI:  Well, to the contrary.  And two points to make about that.  First, of course  the ­­ one of the methods of contraception they object  to here is the IUD.  And that is by far and away the method of contraception that is most effective, but has  the highest upfront cost and creates precisely the kind of cost barrier that the preventive services provision is trying to break down. 


    JUSTICE ALITO:  I thought that.­­ I was taken by your answer.  I thought it was the government's position that providing coverage for the full range of contraceptives and other devices and drugs that are covered here is actually financially neutral for an insurance company, that that reduces other costs that they would incur. 


    5. Justice Alito asks about kosher slaughterhouses in Denmark. (Yep - that happened!) And Justice Kennedy joined in.


    JUSTICE ALITO:  What about the implications of saying that no for­profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­profit corporation can raise any sort of free exercise claim at all?  Let me give you this example.  According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.  Now, suppose Congress enacted something like that here.  What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do?  They would simply ­­ they would have no recourse whatsoever.  They couldn't even get a day in court.  They couldn't raise a RFRA claim.  They couldn't raise a First Amendment claim. 


    GENERAL VERRILLI:  Well, I'm not sure they couldn't raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don't think it is our position that they couldn't make a free exercise claim in that circumstance and so ­­


    JUSTICE ALITO:  Why is that ­­


    JUSTICE KENNEDY:  Well, but you're getting away from the hypothetical.  Say ­­ Justice Alito's hypothetical was that the impetus for this was humane  treatment of animals.  There was no animus to religion at all, which in the Church of Lukumi, there was an animus to the religion.  So we're taking that out of the hypothetical. 


    JUSTICE ALITO:  Exactly. 


    6. A skeptical Justice Kennedy points out that this issue wasn't even decided by Congress.


    JUSTICE KENNEDY:  Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes. 


    A ruling is expected in June. Stay tuned to HealthCareLawsuits.org for more updates on this case and others.  


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    DC Circuit Court of Appeals Hears Halbig


    By Hadley Heath

    This week the DC Court of Appeals heard oral arguments in Halbig v. Sebelius. Check out my take in Doublethink Magazine:

    The law’s challengers in Halbig have illustrated that the original language and intent of the Affordable Care Act was to limit the law’s individual subsidies and tax credits to states that elected to establish their own health benefit exchanges.  This way, the subsidies would act as an enticement to states to opt in, like several other provisions in ObamaCare.  This “carrot” idea came up in oral arguments Tuesday, although the three judges clearly differed on their interpretations.

    The judges also differed on the government’s argument that the federally-operated exchanges were meant to act as “substitutes” for the state-operated exchanges. Judge Harry T. Edwards, a Jimmy Carter appointee, seemed to agree with the government that the overall intent was for subsidies to be available to all individuals between 100 and 400 percent of the federal poverty level regardless of which state in which they reside, or whether their state lawmakers chose to establish a state-run exchange.

    But if Congress didn’t make this clear in the statute (or in the legislative history), it’s hard to see this as a reasonable interpretation.  Judge Edwards was alone on the bench in his outspoken support for the law.

    Read my entire column here

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    Hobby Lobby/Conestoga Oral Argument Tomorrow


    By Hadley Heath

    Tomorrow the Supreme Court will hear oral arguments in the cases brought against ObamaCare's contraception mandate by Hobby Lobby Stores, Inc., and Conestoga Wood Specialities Corp.

    The law's challengers will be represented by attorney Paul Clement, and the government's side will be argued by Solicitor General Donald Verrilli, Jr. 

    At the heart of these cases is religious freedom, and many questions are raised: Can a business exercise religious freedom? Are the religious rights of business owners violated when government forces business to follow laws against their conscience? Do Americans forfeit their religious freedom when they act as a business?

    What is mind-boggling to me is that, as noted in an amicus brief from the Independent Women's Forum, women who work for companies like Hobby Lobby or Conestoga Wood were free - and would remain free after any ruling in these cases - to buy contraceptives of all kinds with their own money.  These cases are not about a conflict of interest between religious employers and contraceptive-using employees. Both should be free to live in accordance with their consciences as they relate to sex, life, and contraceptives, and both should be able to use their resources in a way that reflects those values. The mandate would force religious employers to go against their conscience... No one (in this case) is attempting to stop women from seeking out and purchasing the drugs of their choice.

    Lyle Dennison at SCOTUSblog offers an in-depth analysis of the arguments here. He importantly notes that these cases will have little to bear over the fate of ObamaCare at large:

    Only one thing, perhaps, is certain as the argument in this case approaches: whatever the Court decides, it will not decide the fate of the Affordable Care Act.  The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether.  None of that depends upon the outcome of this case.

    The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so.  All that is at issue is who must obey the contraceptive mandate.

    ObamaCare would not be struck down if the law's challengers prevailed in these cases. But it would strike a blow to the philosophy that undergirds government involvement in the health sphere: A one-size-fits-all system will inevitably lead to conflicts in values and conscience. These cases illustrate how problematic it is when choices that should be personal and free are mandated for all. 

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