Tag Archives: health care

Why the President’s ObamaCare Maneuver May Backfire

By postponing the employer mandate, Obama has given millions of Americans the legal standing to sue.

By  DAVID B. RIVKIN JR. AND LEE A. CASEY

President Obama’s announcement on July 2 that he is suspending the Affordable Care Act’s employer health-insurance mandate may well have exposed his actions to judicial review—even though that is clearly what he sought to avoid.

The health-care reform law’s employer mandate requires businesses with more than 50 employees to provide a congressionally prescribed set of health-insurance benefits or pay a penalty calculated at about $2,000 per employee. The law was to take effect on Jan. 1, 2014, but Mr. Obama has “postponed” its application until 2015. His aim, the administration said, was to give employers more time to comply with the new rules. But it was also seen as a way to avoid paying at least part of ObamaCare’s mounting political price in the 2014 congressional elections.

Whatever the reason, the president does not have the power to stop the implementation of a law. If there is one bedrock constitutional legal principle, it is that the president must “faithfully execute” federal statutes. He cannot suspend laws he dislikes on policy grounds or because he fears their political consequences.

Mr. Obama, however, has made a habit of exercising an unlawful suspending power, refusing to enforce selected federal laws, including various provisions of the immigration laws against young, undocumented aliens; work requirements enacted as part of the 1996 federal welfare reform law; and the testing accountability provisions of the No Child Left Behind education law.

One key problem with suspension power—aside from the fact that it destroys the balance of power between the two political branches—is that, when skillfully exercised, it sidelines the judiciary. The Constitution requires that a party commencing litigation must have what is commonly called “standing,” i.e., the party must have suffered or will suffer a legal injury that a court can redress. A determined president can head off litigation by effectively rewriting federal statutes in ways that do not create individual injuries so no party has standing.

By suspending the Affordable Care Act’s employer insurance mandate, however, the president has potentially given millions of Americans the necessary standing to challenge his conduct. This is because the Affordable Care Act is a highly integrated law, with many of its key provisions dependent on each other. In addition to the employer mandate, the law also contains an “individual mandate,” requiring most Americans to sign up for a required level of health-insurance coverage or pay a penalty.

The individual mandate was one of the core parts of the Affordable Care Act considered by the Supreme Court in the 2012 case of NFIB v. Sebelius, where the court upheld the statute against constitutional attack. Throughout that litigation, the Obama administration portrayed the individual mandate as an “integral part of a comprehensive scheme of economic regulation” that included the employer insurance mandate, which was intended to give millions of Americans a way of meeting their new obligation to have health insurance. In other words, suspending the employer insurance mandate prevents the individual insurance mandate from working the way Congress intended.

Like the employer mandate, the individual mandate by law will take effect in January 2014 (unless the president postpones that as well). Individuals who will then have to buy their own health insurance will arguably have suffered an injury sufficient to give them standing to sue.

Once in court, these litigants can argue that the very integrated nature of the Affordable Care Act would make it unlawful to apply one part against them, while suspending another section. They can also argue that only Congress can determine whether, once a statute is fundamentally changed post-enactment, it should survive or fall.

This inquiry usually arises when courts, having invalidated on constitutional grounds part of a statute, must determine whether or not Congress would have wanted the valid remaining parts of the law to remain in effect. The relevant constitutional doctrine is called “severability.”

As the Supreme Court noted in the leading severability case, Ayotte v. Planned Parenthood of Northern New England (2006), the ultimate fate of the revised statute is decided based on the “legislative intent.” In the case of the Affordable Care Act, if the courts were, for example, to determine that the employer insurance mandate is unconstitutional, the well-established severability analysis would lead them to conclude that the individual mandate (and likely the entire law) must also fall because Congress did not intend those provisions to operate in the absence of the employer insurance mandate. The president’s suspension of that part of the law, therefore, should also produce the same result, rendering the remainder of the statute unenforceable.

This argument should find favor with judges who are weary of the use of suspension power that improperly aggrandizes presidential authority, diminishes congressional power, and denies the judiciary an opportunity to have its say. Courts would have to conclude that the whole statute must fall while the president’s suspension is in effect. While reaching this conclusion, they might also declare the suspension itself unconstitutional. Both results would mark a significant win for the American people.

Source: http://online.wsj.com/article/SB10001424127887323368704578596360026187772.html?mod=wsj_streaming_stream

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Plenty of debates, not much about states

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By DAVID B. RIVKIN JR. AND ELIZABETH PRICE FOLEY

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Keeping the federal government within its proper constitutional sphere is critical to all Americans, regardless of their political allegiance. This is because federalism is not about protecting “states’ rights” but about preserving individual liberty. In the words of a unanimous 2011 Supreme Court decision, Bond v. United States, by “denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Federalism also allows states to craft policies that best suit the preferences and needs of their citizens, who can always vote with their feet. Likewise, leaving key policy choices to state governments benefits voters through sheer proximity to decision makers. State legislators are often part-timers who work and live in our communities and are more palpably accountable to us.

State-level reform thus comes more swiftly and better reflects the desires of ordinary constituents. States in recent years have led the way in reforming welfare, health care, education and regulatory policies. They have cut deficits, balanced budgets, reformed tax codes and produced jobs.

Federalism also benefits the national government. By having up to 50 different approaches to an issue, Congress can see what works.

Despite federalism’s many virtues, it is not much in vogue. Democrats view it as a quaint, 18th-century relic, another disposable constitutional concept that stands in the way of “progress.” The Obama administration has been particularly disdainful of federalism, with ObamaCare unconstitutionally coercing states into fundamentally revising their Medicaid programs and compelling individuals—under the guise of regulating interstate commerce—to buy a government-approved health-insurance policy.

Republicans pay lip service to federalism but too often toss it aside to achieve their own policy goals. For example, many congressional Republicans, concerned about abusive lawsuits, would nationalize many aspects of medical malpractice, an area of law traditionally reserved to the states.

Meanwhile big-spending states such as California and Illinois have been lobbying Congress for a federal bailout of their unfunded pensions. From the federalist perspective, it is appropriate that the promiscuous spending of some states makes it difficult for them to borrow more money. Such consequences, while dire, provide the political leverage that citizens living within those states need to force their elected representatives to reform.

Yet Washington may well end up rescuing these nearly bankrupt states—because some states will compromise their own sovereignty when the price is right, and the federal government is only too happy to take over and claim political credit. For there is no more assiduous underminer of federalism than the federal government itself. Every session of Congress and every administration adds to the existing voluminous body of federal law that continues to federalize wide swaths of traditional state authority. This must stop.

There was one glimmer of hope for federalism in the third presidential debate, when Mitt Romney talked about saving Medicaid by making block grants to states. “We’ll take that health-care program for the poor and we give it to the states to run because states run these programs more efficiently,” he said. “As a governor, I thought please, give me this program. I can run this more efficiently than the federal government and states, by the way, are proving it.”

If Mr. Romney succeeds in his race for the White House, let’s hope he doesn’t forget that states can be trusted to run their own affairs.

Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush and represented 26 states in challenging ObamaCare. He has advised the Romney campaign. Ms. Foley is a law professor at Florida International University College of Law and author of “The Tea Party: Three Principles” (Cambridge, 2011).

Source: http://online.wsj.com/article/SB10000872396390443328404578022821421131956.html 

Why ObamaCare is losing in the courts

(from The Wall Street Journal, June 14, 2011)

The government’s lawyers keep changing their arguments as each one is exposed as constitutionally suspect.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

When we first articulated ObamaCare’s fundamental constitutional flaws in these pages nearly two years ago, our objections were met with derision by the law’s defenders. Those who have been following the unfolding litigation are no longer laughing.

Three U.S. Circuit Courts of Appeals are poised to render decisions on the Patient Protection and Affordable Care Act in the coming months. Despite hundreds of briefing pages and numerous oral arguments, government lawyers have yet to address the law’s most basic constitutional infirmity. Only a “general police power”—the right to enact laws alleged to be in the public interest without regard to interstate commerce or some other federal legislative authority—can support the law’s centerpiece, the “individual mandate” that all Americans purchase health insurance. The Constitution denies that power to the federal government, reserving it to the states alone.

In enacting the individual mandate, Congress purported to rely on its power to regulate interstate commerce and, in the process, reach individuals who are already engaged in that commerce. But the individual mandate does not regulate commerce, interstate or otherwise. It simply decrees that all Americans, unless specially exempted, must have a congressionally prescribed level of health-insurance coverage regardless of any economic activity in which they may be engaged. Requiring individuals to act simply because they exist is the defining aspect of the general police power that Congress lacks.

The government’s lawyers, recognizing this fundamental constitutional reality, have tried to rewrite the law so that it can withstand judicial scrutiny. They have claimed that the individual mandate is a tax, despite common sense, judicial precedent, and numerous statements to the contrary by the law’s sponsors and President Obama. They have also argued that ObamaCare does not actually impose a mandate on inactive citizens, but rather regulates how individuals will pay for their health care. As Solicitor General Neal Katyal recently put it, the mandate is “about failure to pay, not failure to buy.” This is plainly wrong. The law requires that everyone have health insurance—without regard to whether or how they buy or pay for medical services.

Congress, of course, could regulate how actual, not hypothetical, health care is bought or paid for. There are also ways in which Congress could, constitutionally, achieve the near-universal health-care coverage it sought by passing ObamaCare. Most directly, it could raise taxes to pay for universal coverage. But this option would carry far higher political costs than the scheme Congress actually adopted, which effectively shifts the costs (and ultimately the inevitable need to raise taxes) to the states.

That’s why ObamaCare is so constitutionally pernicious. Our Framers adopted a dual-sovereignty architecture, dividing powers between the national government and the states. As Supreme Court Justice Anthony Kennedy explained in United States v. Lopez (1995), this division achieves two goals. It protects individual liberty, and it ensures that voters can identify which level of government is responsible for what policies so that a proper accounting can be made at the ballot box.

Consistent with the fundamental principle that the federal government is one of limited, enumerated powers, more than 220 years of case law requires that exercises of the commerce power be grounded in a meaningful, judicially enforceable, limiting principle. ObamaCare’s defenders can’t articulate such a principle.

They began with the claim that there was no difference between activity and inactivity, since both involved decisions, and thus could be reached under the commerce power. Having largely abandoned this unwinnable argument, they now claim that the mandate does not really compel individuals to buy insurance, but merely regulates their inevitable future health-care consumption.

But because the future consumption of nearly all existing goods and services is inevitable across the entire population, this argument means that Americans can then be compelled to purchase an infinite variety of goods and services chosen by Washington. Far from limiting what government can do, this is the ultimate enabling principle. Even Soviet apparatchiks, who told producers what to make, did not dare tell people what to buy.

ObamaCare’s defenders have sought to manufacture another limiting principle. They claim that health care is unique because everyone will use medical services, health-care costs can be financially ruinous for uninsured individuals, and others will then have to pick up the slack by subsidizing consumers who do not pay their medical bills. Yet any number of national markets, including the housing market, share these same characteristics.

Thus the administration’s position comes to this: What is one unconstitutional law, more or less, among friends? Health care is simply more important than any other issue. And Congress can be trusted to act responsibly, imposing purchase mandates only when they are essential. That’s why Congress can mandate medical insurance but would never require Americans to buy broccoli. The courts have always found such promises constitutionally insufficient.

The courts will also see through claims by ObamaCare supporters that the law’s opponents are trying to “re-litigate” the New Deal. The New Deal is not at issue. Both before and after the Supreme Court accepted the constitutionality of federal economic regulations in the late 1930s, it has consistently stated that there are limits on federal power and, in particular, on Congress’s power to regulate interstate commerce. It has upheld those limits in a number of cases, making clear that federal regulation cannot reach into areas too remote from legitimate federal concerns.

If ObamaCare is to be upheld, then the Supreme Court will have to abandon these precedents, along with the plain meaning of the Constitution. It will also have to concede that our federal system is in fact not one of divided authority between federal and state governments, but one in which the states merely act as Washington’s administrative enforcers. There is every reason to believe the court would never entertain such a notion.

Source: http://online.wsj.com/article/SB10001424052702303714704576383443814815916.html

Arrogance proves insufficient argument in ObamaCare debate

Supporters unprepared for constitutional debate

By Ed Hassell

In a court of law, there are always clear differences between a political argument and one based on sound legal reasoning.

If you need a prime example of the disconnect between the two, you should have been at the public Oxford-style debate held by the Brookings Institution in Washington, D.C. on March 2. The debate centered on the constitutionality of the health care law’s individual mandate—specifically arguing the ruling passed down by two federal judges already that the mandate to purchase insurance is unconstitutional.

Arguing the unconstitutionality of the law was the lead outside counsel from the Florida ruling (which threw out ObamaCare entirely) David B. Rivkin Jr., who successfully represented 26 plaintiff states and the National Federation of Independent Business. He was joined by Ilya Somin, an assistant professor of law at the George Mason University School of Law.  Arguing for the mandate’s constitutionality were Walter Dellinger, a former solicitor general in the Clinton administration, and Simon Lazarus, public policy counsel for the National Senior Citizens Law Center.

As pointed out by moderator William Galston, the topic of the debate remains extremely important, as it is one of the significant controversies over the meaning of the Constitution and one that will almost surely be decided by the U.S. Supreme Court. A recent Harris/Interactive Health Care poll found that half of U.S. adults oppose the individual mandate while only 22 percent support it.

During the debate, each speaker had ten minutes to present his argument during the first round, which was followed by a five-minute rebuttal round. Following this was roughly an hour of question and answer followed by a one minute closing statement from each participant.

It was clear from the outset that the side making the valid legal argument was led by David Rivkin, experienced and poised from his win in court. In contrast, the speakers arguing for the law displayed the same condescending arrogance that has characterized many leftist arguments since the beginning of the debate. Rivkin and his partner Somin—who like the Florida judge used Obama’s own words against him—made a clear and compelling case that to accept the mandate as constitutional meant upsetting the balance of the separation of powers.

“It violates centuries of established case law, and is fundamentally different from any law Congress has ever enacted to regulate commerce,” Rivkin said. “No meaningful limiting principle can be found and, therefore, under that logic all inactivities can be swept under the commerce clause.”

Rivkin noted that the federal government was nervously trying to make the argument that health care was unique.

“Ladies and gentleman, it ain’t true,” Rivkin said. “There’s inevitability of consumption across a significantly large strata of population in every market, including market for luxuries … and cost shifting is ubiquitous in modern economy.”

Dellinger responded not so much with legal arguments but by simply avoiding the challenge and saying the case was decided back in 1824 when Chief Justice Marshall wrote that “the commerce clause confers upon Congress the ability to regulate that commerce which concerns more states than one.” He also described this mandate as less intrusive than Social Security or Medicare.

“I have no doubt [The Supremes] would strike down a requirement that you eat broccoli,” Dellenger said with more than a hint of condescension.

Somin took his turn backing up Rivkin by actually quoting from the Constitution “something that law professors rarely do” he pointed out. He also took a swipe at Dellinger’s contention that government would never regulate what we eat.

“The people nearby here on Capitol Hill, they have a long history

of passing special interest legislation of various kinds, and there’s numerous industry and corporate interest groups who would love to be able to lobby for bills allowing Congress to mandate the purchase of their goods,” Somin said.

Somin argued that the mandate was a penalty not a tax—even though president and his administration have argued both before the public.

Lazarus and Dellinger would make a few more rambling comments that that led to no serious legal argument. Lazarus called Somin an articulate proponent of the “Libertarian agenda behind these cases” and then quoted Mitt Romney who included a mandate in Massachusetts health care system, as saying “free-riding on the government is not libertarian.”

“This is not a fundamental liberty interest at all; it’s, at best, a trivial personal liberty interest because of the fact that the people who go without insurance are really shoving their costs off on other people,” he said.

“The actual law is not what the Supreme Court says, but what the Constitution says,” Somin reminded the audience.

In perhaps the biggest news of the day, Dellinger made a bold prediction that the vote in the Supreme Court would not even be as close as predicted (“At least six to three,” he said) and that Chief Justice Roberts would assign the opinion to himself for the Court. Then he really put his foot in his mouth.

“I’m willing to hold up a sign saying Ilya Somin and David Rivkin are smarter than I am — for an hour out front of this building — if I’m wrong about this,” he said.

How many volunteers out there would like to help us paint the signs?

 

ObamaCare plaintiff attorney victim of cyberattack

Prominent ObamaCare opponent David Rivkin has website crippled

Published on February 14, 2011

by Staff

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

On the heels of a major federal court victory in the ObamaCare reform battle, lead outside counsel David Rivkin has become the victim of a cyberattack against his website.

Administrators running the site, David Rivkin.com, said they first became aware of significant problems on February 8. Around midnight on Thursday, Feb. 10, a million comments appeared within a five-minute time frame, destroying countless articles and interviews posted on Rivkin’s site.

“We are notifying the appropriate authorities and are confident the person responsible will be caught,” said Rivkin.

The Denial of Service (DoS) attack occurred just a week after a Florida federal judge found that ObamaCare was unconstitutional and should be thrown out, ruling in favor of plaintiffs that include 26 states, the National Federation of Independent Business and two individuals, all represented by Rivkin.

Rivkin, a former White House lawyer, was the earliest voice to question the constitutionality of ObamaCare. From the beginning, he framed the legal debate through editorials he wrote in 2010 with partner Lee Casey for The Wall Street Journal as well as through numerous television appearances.

About The Hardwicke Group LLC

The Hardwicke Group is a social media company specializing in reputation monitoring and management, social media public relations, and original online content.

Source: http://www.officialwire.com/main.php?action=posted_news&rid=281351

A view from the front lines of the ObamaCare battle ….

On Thursday, Oct. 21, 2010, the Washington Legal Foundation held a briefing titled “The States v. ‘ObamaCare’: Legal Challenges to the Health Reform Law and How They Are Faring in Court” at the M.J. Murdock Center For Free Enterprise in Washington, D.C.




Conservative duo tests health law

(from The Wall Street Journal, September 13, 2010)

By ASHBY JONES

Whether President Barack Obama’s health-care overhaul survives could depend on a yin-and-yang pair of conservative Washington, D.C., power lawyers who sued to stop it mere hours after the bill became law in March.

The lawsuit, filed in Florida by David Rivkin and Lee Casey, is one of a handful of challenges lodged against the law in recent months. Like Messrs. Rivkin and Casey’s action, some of the suits argue that Congress doesn’t have the Constitutional authority to require people to buy health insurance or face a fine, a key tenet of the legislation.

But largely because the Florida lawsuit was lodged on behalf of 20 state attorneys general, it has become the most closely watched case in the ongoing political battle overt the health-care overhaul.

“This is one of the most important Constitutional challenges in history,” said Mr. Rivkin, who along with Blaine Winship, an assistant attorney general in Florida, is scheduled to defend the lawsuit in front of U.S. District Court Judge Roger Vinson.

The Constitution grants Congress certain powers, like the power to tax or to regulate commerce between the states. Messrs. Rivkin and Casey believe, however, that nothing in the Constitution gives Congress the power to require individuals to own health insurance. They worry that the health-care example could set a dangerous precedent. “This is well beyond health care,” Mr. Rivkin said. “It’s about a fundamental alteration of a key portion of constitutional architecture which would greatly impair individual liberty.”

Legal experts are divided over the strength of their case, however, with many predicting it will sooner or later fail entirely. The Obama administration has lodged an early challenge to the suit, arguing that the Constitution’s Commerce Clause gives Congress the power to pass the law. The government also argues that the states filing the suit don’t have “standing.” That is, they can’t sue because the law has yet to harm them.

Walter Dellinger, who served as acting solicitor general under President Bill Clinton and now works in private practice in Washington, D.C., said the case should be dismissed for lack of standing. “David and Lee are very well-regarded lawyers, but they’ve brought better lawsuits.”

Such criticism doesn’t faze Messrs. Rivkin and Casey, both of whom work at Baker & Hostetler LLP in Washington, D.C. Mr. Rivkin said his clients have the right to challenge the law now for several reasons. For starters, said Mr. Rivkin, states have already had to spend money and commit resources to comply with the law.

But Mr. Rivkin sees a different harm suffered by the states. “The states’ sovereign authority is being trammeled upon by the federal government.”

Although a team, the two men, both 53 years old, are a study in contrasts. Mr. Rivkin, who emigrated from the former Soviet Union when he was 17 and still speaks with a slight accent, handles more of the work that demands an extroverted streak, like drumming up clients or doing television interviews.

Mr. Casey, who hails from Michigan, opts for the more solitary tasks, such as analysis and writing. “I’m the introvert,” he said.

The pair met in 1987 as young Reagan Justice Department lawyers and quickly bonded through their shared conservative political views and fascination with the Constitution.

“Back then, we would go to Monticello and Montpelier a couple times a year,” recalled Mr. Rivkin. “It was a quintessential Washington friendship. It revolved around ideas.”

Both stayed in government through the George H.W. Bush administration, and in 1993, “after the political wheels turned,” Mr. Rivkin lured Mr. Casey to the Washington office of the law firm Hunton & Williams LLP. In 2000, they decamped together to Baker & Hostetler, where their practice focuses largely on appellate litigation.

Mr. Casey says he and Mr. Rivkin work on together on cases “75 to 80 % of the time. They also frequently pair up to write op-ed pieces, which typically feature a politically conservative point of view.

Last year, the pair wrote a series of op-eds on the constitutionality of the health-care law in The Wall Street Journal that grabbed the attention of Florida attorney general Bill McCollum. According to Florida deputy Attorney General Joe Jacquot, the pieces sparked conversation throughout Mr. McCollum’s office on “state sovereignty and the individual mandate”—the portion of the law that requires all individuals to purchase health insurance.

At the same time, Mr. McCollum knew that Mr. Rivkin was giving South Carolina’s attorney general, Henry McMaster, advice on challenging the so-called “Cornhusker kickback.” Under that arrangement, Nebraska Senator Ben Nelson agreed to support the health-care bill in exchange for individual benefits for Nebraska.

Ultimately, the “kickback” was dropped, but when it was settled that Florida would take the lead in the lawsuit, Mr. McCollum kept Mr. Rivkin on board.

On Tuesday, Judge Vinson is unlikely to rule on the government’s motion. But he could give a sign which way he’s leaning.

The pressure on Messrs. Rivkin and Casey is “intense,” said Bradford Berenson, a former White House attorney in the George W. Bush administration. “Every move they make will be scrutinized.”

Source: http://online.wsj.com/article/SB10001424052748703897204575487963449135280.html