Video: FedSoc Expert Panel on King v. Burwell

    03/03/15

    By Hadley Heath

    If you missed the Federalist Society expert panel on King v. Burwell, you can view it online here:

     

    Panelists include:

    • Prof. Jonathan H. Adler, Case Western Reserve University School of Law
    • Mr. Simon Lazarus, Constitutional Accountability Center
    • Ms. Carrie Severino, Judicial Crisis Network
    • Mr. Robert N. Weiner, Arnold & Porter LLP
    • Moderator: Mr. Robert Barnes,The Washington Post
    • Introduction: Mr. Dean A. Reuter, The Federalist Society

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    Policy Focus: King v. Burwell

    02/25/15

    By Hadley Heath

    The Independent Women's Forum just released a policy focus on King v. Burwell. Oral arguments will be heard March 4, 2015. To download and read the policy focus, click on the image below:

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    Public Woefully Uninformed about King Case

    01/28/15

    By Hadley Heath

    A new Kaiser Health Tracking poll shows that 56 percent of Americans say they've heard nothing about the upcoming Supreme Court case King v. Burwell. Only 5 percent of people say they've heard "a lot" about the case.

    If you are in the 86 percent of people who've heard nothing or "only a little" about King v. Burwell, here's a summary:

    The Affordable Care Act required that states establish a health insurance "exchange" or default to a federally-operated exchange. Initially, the expectation was that most states would comply and create and maintain their own exchanges. But 37 states declined to establish an exchange. Some states did so because they are philosophically opposed to ObamaCare; others did so because wading through the cost and bureaucracy of creating an exchange was too much for them.  

    The IRS was faced with a problem: The law described the state-based exchanges and the federal exchange in two separate sections (Section 1311 and Section 1321).  It never authorized subsidies to flow through the federal exchange. In an effort to fix this, the IRS decided -- even in the absence of Congressional authorization -- to push the subsidies through the federal exchange anyway.

    The question before the Supreme Court in King v. Burwell is whether the IRS acted illegally.  Advocates of ObamaCare say the difference in the exchanges was just a drafting error, and that the IRS was acting in the spirit of the law to send subsidies through the federal exchange. Challengers say that no, the original Congressional intent was to bully states into establishing an exchange by withholding the subsidies from non-establishing states. Furthermore, they point out that allowing an administrative agency to go rogue and act without Congressional authorization sets a bad precedent and defies the rule of law. 

    If the Court rules against ObamaCare in this case, the result could be that subsidies stop flowing to insurance companies in the exchanges of the 37 non-establishing states. As the Kaiser polling points out, the majority of people (64 percent) say that in the event of a King victory, Congress should act. Already, Republicans in Congress have formed a working group to prepare a policy with a responsible transition for the affected exchange consumers and options for states to restore competitive markets and affordablity to their health care systems.

    Oral arguments for the King case are set for March 4, 2015. 

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    House Republicans File Executive Overreach Lawsuit

    11/21/14

    By Hadley Heath

    In July, the House of Representatives voted to file a lawsuit against the Obama administration, alleging that the executive branch overstepped its authority while implementing ObamaCare. Today, that lawsuit was filed in the federal court in the District of Columbia. Specifically, the House of Representatives points out in their complaint that the Obama administration acted unilaterally to delay the employer mandates in ObamaCare and dispersed payments to insurance companies that were not authorized by Congress.

    The defendants are HHS Sec. Sylvia Burwell, the Department of Health and Human Services, Treasury Sec. Jack Lew, and the Department of the Treasury.

    To read the complaint, click here

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    Supreme Court To Hear Issue of ObamaCare Subsidies

    11/07/14

    Today the Supreme Court announced it will hear the issue of Obamacare’s subsidies in the federal exchange, which challengers have alleged are illegal. Reuters reports:

    In a one-sentence order, the court said it would decide a case brought by conservative challengers to the law. The plaintiffs appealed a July ruling by the 4th U.S. Circuit Court of Appeals that upheld the subsidies. The nine justices will issue a ruling by the end of June.

    This suggests that the Justices are granting the cert petition filed in King v. Burwell.  But the King case isn’t the only one to deal with this issue. Notably, Halbig v. Burwell is a very similar case that won in the D.C. Circuit Court of Appeals. Often, in the case of a split circuit, the Court will combine cases to hear the same issue and resolve the conflicting lower court rulings.

    This issue poses an existential threat to ObamaCare. While it has been framed in the press as a politically-motivated attempt to gut ObamaCare of its subsidies (one of its essential features), this case is really about executing the law as it was written. Challengers point out that the law never authorized subsidies to be dispersed through a federal exchange, but only through an exchange established by a state.

    If the Supreme Court were to side with challengers and rule that the IRS overstepped and illegally changed the implementation of the law without Congressional approval, the result would be that no subsidies would flow through the federal exchange. But this would not be the fault of these lawsuits – it would simply be the execution of ObamaCare as written.

    Importantly, the subsidies trigger other not-so-popular mechanisms in the law, like mandates and penalties, which could also be affected if the law’s challengers prevail.

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