Saturday, August 30, 2014

Origination Clause Challenge to Individual Mandate In Trouble ... For Now?

Among the stunning features of the Patient Protection and Affordable Care Act, “Obamacare,” is its requirement that every American purchase health care insurance. That requirement, the individual mandate, marked the first time in US history that Congress ordered the American people to purchase a product that, previously, they had been free to buy or to reject.  The outcry was immediate, and led to a turnover in Congress to Republican leadership in the House of Representatives.

Challenges to the individual mandate were immediate.  Multiple legal theories supported the challenges.  

Thus far, the Supreme Court has taken two turns at examining the Act, or parts thereof.  Last year, a bare majority held that the individual mandate under the Act, which could not be justified as an exercise of the Commerce Clause power, was, instead a tax.  Then, just weeks ago, as the 2013 Supreme Court ended, the Court held that the mandate for corporations to include prescription coverage for their employees for abortion-inducing birth control violated rights under the federal Religious Freedom Restoration Act.

Still other challenges to the Act are moving forward in other courts.

Among constitutionalists, much hope has been invested in legal challenges based on two separate strains of legal theory.  One approach seeks to bring about an implosion of the Affordable Care Act by stripping out federal tax credits to fund premiums for low income applicants; those credits are authorized in States that set up exchanges, but not in the 36 States that did not do so.  An IRS rule-making extended the credit in those States despite the lack of authorization for such an extension.  I have previously posted on two recent, conflicting decisions addressing this approach.  

An entirely separate approach, born of a search within the Constitution for the underpinnings of the power to impose a federal tax, has challenged the enactment of Obamacare because it originated in the Senate, rather than the House of Representatives. That, if true, may mean that when the Democratic Party-controlled Congress enacted Obamacare, it violated the Origination Clause the US Constitution.  The Origination Clause states:  “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”  US Const. Art. I, sec. 7. 

Litigation raising the Origination Clause argument against Obamacare has been pending in the Nation’s Capitol for some time now.  Matt Sissel, the plaintiff, claimed that, because the penalty for failing to purchase health insurance is a tax, the Origination Clause required that the House of Representatives originate the legislation.

Obamacare, however, was an invention of the Senate.  In fact, the Democrat-controlled Senate took a pending House bill – one regarding tax credits for home ownership by members of the military -- stripped out every jot and every tittle of it including its title, and inserted the Affordable Care Act in place of its original text and title.  This, on Capitol Hill, is called an amendment in the nature of a substitute.

Neither a Nation nor its people, nor their hopes, aspirations, dreams, labors or relationships should be governed by the whim of gamesmanship.  Yet, with courts at the crux of decisions about the legality of laws like Obamacare, crucial decisions often resemble a group of judges arguing over number placement in Sudoku or attempting a “group solve” on the daily crossword.  Not to put too fine a point on it, attorneys whose careers depend on appearing before the Supreme Court and federal appellate courts understand how these word games are played and craft their arguments to the tune of such judicial gamesmanship.

Now, however, a decision from the US Court of Appeals in WashingtonDC, spells trouble for those who have held the hope that a faithful application of the Origination Clause to the mandate would lead to a decision striking down that provision, and perhaps, the entire the Patient Protection and Affordable Care Act.  Because the meaning and application of the Constitution is the right of every citizen to discern and the duty of every federal official to respect, a decision that gives meaning to, or applies what it claims is the settled meaning of, a provision of the Constitution, the Court's decision should be thought important by every man.

Matt Sissel, an artist, small-business owner and National Guardsman, simply thought that such a signal shift in policy and law, if it were to be forced upon the people, ought to be accomplished within the bounds of the law and the Constitution. Sissel's view is, I suppose, perceived as unreasonable by those who pushed the Affordable Care Act through Congress.  Such denizens of social manipulation and control take affront when we, who prefer to do so, manage the affairs of our lives free of government mandates. For them, it was entirely reasonable to enact legislation, while candidly admitting that they had to pass the bill to know what was in it. That reasoning hardly inspires confidence that legislators are, in fact, comporting themselves within constitutional boundaries.
Judith Rogers, a Bill Clinton appointee to the DC federal appeals court, joined by two recent Obama appointees, evaluated Sissel's theory that Obamacare violated the Origination Clause.  Faultless, the court responded, was Sissel's assertion that the legislation had, in fact, originated in the Senate, rather than the House.  Faultless, the court responded, was Sissel's assertion that the individual mandate imposed a tax. Of course, Judge Rogers deserves no particular credit on that score given the Supreme Court's previous Obamacare decision by Chief Justice Roberts holding that the mandate was, in fact, a tax.

The appeals court concluded, however, that even though the BILL ORIGINATED IN THE SENATE and even though the BILL IMPOSED A TAX, it was not, as the Origination Clause language states, a "bill[] for raising Revenue."  The court concluded that, while it was true that the tax would, in fact, raise revenue for the federal government coffer, the purpose of the entire Act, and the purpose of the mandate's tax, was, rather than raising revenue, to address the policy and law on health care insurance in the United States. Thus, while revenues will flow in to the government under the Act, because that was not the motivation of the entire act, the court reasoned, the Origination Clause challenge to it failed. 

Clever and conclusive, the decision abides what it must, the Supreme Court's conclusion that the penalty for failing to purchase insurance is a tax, admits what it cannot deny, that the bill originated in the Senate rather than the House and that it imposes a tax rather than a penalty, and then claims a ground of construction of the Constitution allowing it to dispose of Sissel's claim.  

For now, it would seem the Origination Clause challenge to the individual mandate under Obamacare is in trouble.


This post is the first of three on the topic of the Origination Clause, the Sissel litigation, and Obamacare. Parts two and three will follow shortly.

Saturday, August 9, 2014

Postal Service Announces Operation Junk Mail Saver

Thanks to coverage on NBC's Today Show and other broadcasting sources, some Americans may believe that postal employees are irresponsibly throwing deliverable mails in dumpsters to ease their route delivery work.  In response to the adverse publicity, the Postmaster General today revealed that the recently, and widely, released surveillance video instead reveals a bold new Postal Service initiative.

JIMSMIND, NC (August 8, 2014)--USPS today confirmed its implementation of "Operation Junk Mail Saver." 

Postmaster General Frank Donahoe announced today the inaugural test of its latest customer courtesy initiative, "Operation Junk Mail Saver." "Ladies and gentlemen, we at your US Postal Service know too well the inconvenience and clutter that results from receiving dozens of advertiser mailings and circulars each week. We have heard your cry and have developed a unique program that combines the maintenance of a high value income stream to your Postal Service while alleviating the taxing tasks associated with reviewing and disposing of unwanted mail."

Although the initiative was not intended to be made public until studies were complete, Donahoe explained his decision to come forward with word of the program when a local news reporter broadcast surveillance video showing one test of the program being conducted by an Austin, Texas participating Post Office:

"I'm sure that, not knowing that this disposition of mailings was intentionally done as part of this customer courtesy initiative, many would assume that the news reporter's video showed a criminal act of postal negligence. Nothing could be farther from the truth. We have highly developed algorithms that have been developed to calculate the likelihood of any individual piece of mail actually being of interest to a Postal Service consumer.

The Postmaster General confirmed that Operation Junk Mail Saver was part of a larger package of initiatives designed to improve service efficiencies and conveniences.  "As you are aware, another aspect of the program in which the Operation Junk Mail Saver was the initiative to spare postal customers the difficult and tedious task of opening, evaluating, and responding to, package deliveries."  In that instance, Operation What Granny Don't Know Won't Hurt Her had come to light last month during initial testing of that program.  In Operation What Granny Don't Know, the Postal Service disposes of shipped packages that are anticipated not to be of use, or meaningful to, our customer base.


"This isn't the Postal Service of dear old Ben Franklin, friends. We have employed the latest technologies and consumer sciences to preserve this Service as a method of bringing unwanted mailing to the homes of over 300 million Americans. This initiative allows us to continue to sell bulk mailing opportunities to unsuspecting merchants and small businessmen, while sparing consumers of the ugly task that actual delivery of unwanted mailing would impose on them.

"As we roll this initiative out across the country, it is our hope, eventually, simply to take money from America's small businesses and merchants while providing absolutely no value in return at all."
Donahoe did not respond to a reporter's question as to whether that goal -- taking money and not providing anything in return -- was, in fact, the definition of taxation.

Thursday, August 7, 2014

Tobacco and Abortion ... A Tale of Broken Possibilities.

For years, folks like me, who oppose abortion not because we hate women and want to control them, but because we love life and want to see it fostered, have offered as an point in opposition to recreational abortion, even therapeutic abortion, that destroying a child in the womb destroys a future of unknowable possibilities.

If Beethoven's mother had lived today as she lived then, with diseased and broken children preceding him, with testing for genetic abnomality available, there would be no Beethoven in every likelihood.  No Jonas Salk.  No Maya Angelou.  Because in the modern ethic the response to difficulty in pregnancy is optimal relief of responsibility, avoidance of hard circumstance, disposition of that which discomfits.  The point is typically lost on those with whom it is shared.

After all, it's hard to imagine that Beethoven's mom would abort him. Or Oprah's.  Or Elvis's.   Yet we know that 1.5 million moms abort their babies here in America every year, and some 65 million moms do around the world.  So, it isn't that hard to imagine, among those 65 million children lost each year, a child that designs a better mousetrap, composes a sweeter symphony, or lightens the load of another as they walk life's often broken way.

At this point, you have to be wondering what this has to do with tobacco.

Yes, there is a connection and it is in that interesting story of the treatment given to American aid workers exposed to the Ebola virus.  You see, it turns out that the treatment is derived from mouse antibodies and grown in tobacco plants.  Yes, tobacco plants.

Had we the good sense to rid the planet of the noxious weed, we could have won the accolades of those who believe healthy health choices should be made for you by the government.  Had we done so, however, we would have eliminated a highly valuable plant substrate for growing the proteins that make up the ZMapp treatment.  

Of course, had we had that good sense, then those mouse anticlonal antibodies would have had to be grown in some other manner than the highly efficient and high speed tobacco plant.  While many of us enjoy tobacco, just as C.H. Spurgeon did, we don't argue for its beauty, its intrinsic worth and value.  And, had push come to shove, how many would take up arms to prevent the eradication entire of the plant?  Well, probably about as many as take up arms to protect children from abortion, and likely with equal success.

And that, my friends is the connection.  From a despised plant springs new hopes for tomorrow.  Just as, if afforded the opporunity in life, from unborn children such unbounded hopes and possibilities could yet spring.

Restauranteur Chastised for Quantifying the Bottom Line on Forced Wage Increases

Short of a bad review by the local food critic, publicity over the existence, cuisine and quality of a restaurant can be a make-or-break component of getting an eatery up and running, and keeping it up and running.  (See, I pay attention when Gordon Ramsay is repairing Kitchen Nightmares).

I do wonder whether    finds the publicity around his decision to candidly state, on customer bills, the itemized price for his forced compliance with a Minnesota law raising that State's minimum wage.  You can read about Oasis Cafe, and its owner's decision to tack a $0.35 minimum wage increase fee onto each customer transaction here.

Mr. Beemer wants his clientele to know what the impact of an increase in the minimum wage is, and the identities of those who will pay for that increase (the customer).  His clientele, or some of them, and some sector of "living wage" activists object to his decision and his use of the restaurant ticket to promulgate his message.  For me, this is one of those simple and tough decisions.  Beemer risks displeasing a portion of his clientele, thus driving them to competitors.  Yet, for me, this is the essence of the liberty of speech.  A restaurnteur simply making plain what, it seems to me, even a simpleton should know:  if you increase the price of doing business, then you will increase the cost associated with buying from business.

As I see it, this restauranteur probably did something like the following:

1.  totalled up the man hours deployed in providing its quality of customer service, including wait staff, kitchen staff, and others affected by a state law mandated increase in the minimum wage.
2. multiplied that total number of hours times the .75/hour increase in that minimum wage
3.  took that product, which is a best estimate or guess of how much of the company's gross profits will go to covering the addition to the minimum wage, and divided it across some other factor, perhaps the number of service units required to produce that gross profit.
4.  that quotient, then, should approximate the .35 cent "minimum wage fee" that appears on the ticket.

My thoughts:

This is the kind of transparency PROMISED by the weasel in the White House ("The most transparent administration in US History") but never delivered (perhaps because there wasn't a service that could pick up his promise at one of the local golf courses where he spends his time.

This "fee" could have been rolled into the pricing structure.  Doing so would probably have made it unnoticeable.  The ticket could as easily have read:  Black and Bleu Burger, $9.15; Jalapeno, $0.70.  Doing that would have hidden the restaurant's costs in the prices.  Doing so would, perhaps, omit the feel that some seem to be taking, of blaming others for this increase in prices.

In that sense, it could be like Aaron lying to Moses, "Geez bubby, we just threw our gold earrings in the fire and out popped this idol."  We all know that raising wages (a decision that often can be an indication of a savvy businessman because such an entrepreneur knows that the single greatest factor in profitability is happy customers, and that the single greatest factor in creating and maintaining a happy customer base is creating and maintaining a happy employee base), raises costs.  Even if, as some claim, and even offer data to support, raising wages can raise net profits, the fact is that forcing another to do so is an act of political will, expressed by the exercise of republican principles of democracy, in the creation of a law requiring such wage increases.  So, now we have a restauranteur who, having been targetted by an act of political will, uses his own resources to express a message and divulge a fact.  As a constitutional law attorney, and a onetime professor of constitutional law, when I see an individual expressing in writing a message of this sort, I immediately recognize the trappings of an exercise in freedom of speech and of the press.

Now nothing protects the restauranteur from the ire of those customers who feel incensed that he has quantified and identified that COSTS of the wage increase.  They can stop doing business with him.  His choice may affect his bottom line.  Such, they say, is life.

But I admire his decision to quite the point in clear distinction for the discriminating diner.

Tuesday, August 5, 2014

A Reading from the Gospel of Creflo and Benny

"And the Lord returned from the lake to the shore and saw gathered there a great multitude.

And the Lord knew that the crowd had not all contributed funds for the maintenance of his new Cigarette Marine Racing Boat, capable of exceeding 130 mph.  Therefore, He did direct his disciples to conduct a collection from amongst the crowd.  And there was gathered 10 drachma, which the Lord did look upon with despite, because such would not provide sufficient fuel to turn over the three engines powering his vessel.

Therefore a second time did the Lord cause his disciples to pass among the crowd to collect for the maintenance fund for his 2014 Mercedes E Class Sedan with which He did compass about the entire land.  But the disciples returned unto the Lord having gathered only five drachma, and the Lord was stirred in His anger toward the people.

But because He would not, yet, in his anger and sore displeasure cause cankers and boils to erupt in the tender thighs of this people, He did send His disciples again amongst the people to gather their offerings for the mortgage balance on his 10,000 square foot estate on the shores of Galilee.  And again his disciples passed among the people, and again they returned with not much offering unto the Lord, having gathered only three drachmas.

Now was the Lord much wroth with the stinginess and ingratitude of those that had gathered.  Seeing how the crowd had waited many hours during the collecting of offerings and having walked out to the sea side to hear him, he caused the crowd to be seated, and he did begin to speak:

Surely, surely I say unto thee, because thou has failed to give the first ten percent of your income unto me, for the maintenance of my luxury boat, my luxury car and my luxury home, I have weighed you and found you wanting.

Looking into the crowd, he observed a man who was halt and lame in one leg, and he called him forth from the crowd.  And knowing that in his change purse he possessed a drachma, the Lord did direct Peter, James and John to seize him, to shake him violently while being held upside down, and to take his purse from him.  After Matthew did take up the drachma, Jesus calmed his disciples and the man did stand again before the Lord.  And the Lord did say unto him:  I see that thou art lame in thy leg.  Turning to his disciples He said, Observe his lameness and how he did not give all that he had to God's annointed.  It is for this sin that he is lame, and he will remain lame until he doth learn to give until it hurteth.  Then the Lord smote his whole leg and did cause a palsy to come upon it, and the man crawled back to his former place in the crowd.

And the Lord spoke in a great voice:

Come unto me, ye very few who did give coins and stand with me.  And from the crowd of five thousand men plus women and children, there arose three elderly women from who all of the coins had been collected although they lived upon the charity of those gave alms to the poor.  And seeing the women, he spoke to the crowd and said, these women are blessed alone among you, for they gave all that they had for the maintenance of my kingly lifestyle.  He bid them three to sit with his disciples.

Then the Lord spoke again, and said, this matter of giving unto me comes before all others, for by the mannner of your capacity of giving will I measure my capacity to care about you.  And he turned to the women and gave them some dirty sea water to drink and the left over moldy bread from a feast he had attended two weeks prior.  But the women, in the great thirst and hunger, complained not that he did so do, but quickly consumed the miserable morsels.

Then the Lord spoke and said, What came ye out into the wilderness to see?  Some miserly prophet eating locusts and honey?  No, ye came out to see one who, because he is the beloved of God, hath every manner of enrichment and emolument, whose annointing is evidenced by his cable network, his books sales and his hob-nobbing with both Herod and Pontius Pilate.  But you have hidden coins next to your heart and have not rendered them unto me.  So now I say unto ye, verily verily if thou leavest here today and have not given unto me, thou are a thief and a robber and God's spirit hath no part in thee.

At his words, a few in the crowd were moved, and as the disciples passed amongst the crowd, they didst give their coins unto the Lord.

When again his disciples returned from collecting, though the crowd was great in number, still they had only gathered a small number of coins.

Now the great anger of the Lord was waxed even hotter, and He did pick up his Uzi, and directing his disciples to take up theirs, they began to fire upon the crowd and did kill those whose crass greed and disobedience had prevented the Lord's maintenance collection to be sufficient according to the weekly budget plan of the Lord's fund maintenance trustees (consisting of the Lord, his brother James, and Mary, his mother).  And there were, that day, in the crowd, killed, some two hundred and fourteen selfish and greedy souls.  And as the Lord turned away from the crowd he did say unto them, those who had escaped the heat of his holy Uzi, "your fathers gave you manna in the wilderness, but if you want to hear the words of life from me, ye shall learn that the price of admission is 500 drachma for general seating, 1000 drachma for orchestra seating, and 5000 drachma for orchestra seating with VIP access and backstage passes."

Blessed be the Gospel of Benny and Creflo.

Friday, August 1, 2014

Obama's Cookin Up Trouble in the Constitution Kitchen, Boehner is No Gordon Ramsay

For some, Kitchen Nightmares is a show they love to hate; for others, it is a show they hate to love.  The premise is simple:  a restaurant is falling apart, chef Gordon Ramsay comes to the rescue after receiving a videotape from the owner or others describing the current decline (and sometimes the former glories) of an eatery.

Ramsay arrives on the scene, samples the fare (I am fairly sure that I have never seen him compliment a single dish served at this point in the drama), meets owners and staff, and then watches a prime service, whether it is the dinner service, or Sunday brunch or the like.  All hell breaks loose.  A chef becomes indignant, or an owner, or an owner-chef.

Rat droppings are found aplenty.  Molded food is found in the cold storage.  A commercial kitchen stove only works half the time.  And to top it all off, either the decor crawled out of the belly of a sick animal, or the atmosphere is a confusing mishmash of cutesy homeyness and uncomfortable seating.

In the end, Ramsay cajoles the angered chef or owner back inside, gains a tearful commitment to progress and change, and then rub-a-dub-dub, the place gets a scrub, a make over, and an updated menu!  By the hour's end, we have the impression that all can actually be well again.

So, look, if you don't like the Constitution, you can do the Kitchen Nightmare approach.  In constitutional terms, the Gordon Ramsay treatment for the US Constitution is to amend or repeal it.  Doing so is as formulaic as Kitchen Nightmares.

That's the kind of thing pro-lifers have been hearing for years, ever since Harry Blackmun invented the right to dismember your own child while it is alive inside of you.  So here we are, living under a Constitution.  One that gives Congress NOT THE PRESIDENT plenary power to regulate migration into the USA.  So, if Obama wants to wrest that power from Congress all he has to do, and the only thing he has to do, is amend the Constitution.

Now as a "professor of constitutional law," I'm sure that was perfectly understandable for Professor Obama.  So, when Congress did NOT enact the DREAM Act -- a proposal that would have deferred deportation action for applicants brought to the US before their 16th birthday that had continued their education, gotten work, and avoided serious criminal law issues -- Obama could have said, "I'm tired of Congress not doing its job ... let's amend the Constitution so that I have the power to enact laws without Congress."

He didn't do so.

Instead, he issued an Executive Order on DACA, Deferred Action on Childhool Arrivals.  That Executive Order simply adopted key features of the DREAM Act as regulations. VOILA!  Just add Obama, no Congress necessary.  Now there isn't even any need for cooks in the kitchen.

When a madman enters your kitchen and begins cooking up mudpies and grass soup, you have a few options for addressing the situation.  And when a President enters a field belonging solely to Congress, it has a few options for addressing the situation.  For the trespassory Sham Chef, the solutions include calling the police to remove him, removing him yourself, and letting him run the kitchen.  For the trespassory president, there are the options of embarrassing him through the public exposure of oversight hearings, hamstringing him by the discipline of a restricted budget, or impeaching him.

So, when the Executive Chef of the House kitchen, John Boehner, tells America that tossing the Sham Chef out (impeaching him) is not on the table, but that suing the Sham Chef is a best option, you need to think about hiring a new Executive Chef.  After all, the Sham Chef is cooking away in the kitchen, creating havoc reminiscent of the scene In "Close Encounters of the Third Kind" where Richard Dreyfuss is pulling up hedges and dirt and throwing them into his kitchen to make his mud mountain rendition of Devil's Tower.

After Thursday evening, perhaps Boehner is giving thought to passing his jaunty Chef's cap along to another.

On Thursday evening, House leaders cancelled a vote on an emergency bill to fund activities responding to the border immigration crisis that has been much in the news of late.  CANCELLED.  Some headlines suggest that the House is in disarray.  The AP report explained that Representative Peter King, of New York, among others, laid the blame squarely at the feet of ... Senator Ted Cruz.  Strange, isn't it, that a man who doesn't have the privilege of the floor in the US House, a man who chairs no committee in the House, is made to be the conquistador of House Republicans.

So what was it that Senator Cruz did?

He invited House Republicans over for pizza.

While I'm certain the pizza was delicious (what pizza isn't?), I doubt that Senator Cruz doped the pizza and drugged his guests.  I'm thinking, and it is a guess, that what Senator Cruz did was meet with those Representatives who shared his concerns about executive overreach by Obama, about violation of Congress' sole prerogative regarding immigration.  In that meeting, he pitched to them the idea that no emergency border funding legislation should pass the House unless it expressly DEFUNDED Obama's lawless and unconstitutional Deferred Action for Childhood Arrivals activities.

Such a quid-pro-quo would make sense.  It applies budgetary discipline short of impeachment to a crass and clumsy overreach by Obama into an area of plenary congressional authority.  It gives the Administration funds to deal with the mess that the Admininstration has created by lax enforcement of borders and by enticing children to America with the Pied Piper promise of Deferred Action.

Apparently, Chef Boehner would have none of it, and without the DACA defunding provision, his sous chef Republican majority refused to cook up a dish that only the Democrats could ingest with pleasure.

Wednesday, July 23, 2014

A Tale of Two Courts


With news of federal appeals court decision out of Washington, DC, in the morning on July 22nd, I thought, "this is the best of times."  By the time the day had ended, and word came of another appeals court's decision on the same issue out of Richmond, Virginia, I thought "this is the worst of times."  As it turns out, the two decisions are a quite potent tutor on the importance of the kinds of people that are put, by our votes, in Congress, and in the White House.  As you will see if you read on, the political identity of Presidents that appoint judges provides a nearly perfect predictor of judicial philosophy.

Allow me to explain:

Two federal appeals courts issued decisions regarding a contentious issue arising from the Obama administration's interpretation and application of an aspect of the Obamacare statute.   In one decision, from the US Court of Appeals for the District of Columbia Circuit, two out of three judges concluded that the IRS overstepped legal bounds when it adopted a rule permitting a insurance premium tax credit be allowed in instances where the consumer purchased health insurance through the federal health insurance exchange.  In the other decision, from the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, three judges concluded that the exact same IRS rule was a reasonable interpretation of the text of the Affordable Care Act.

Briefly, Congress set up a two tiered system to accomplish its goal.  A charitable construction of Congress' goal would be to obtain the widest possible inclusion of Americans within health insurance coverages.  Until Obamacare became the law, health insurance was, virtually entirely, a question of state law and state regulation.  When the Democratic Party controlled Congress adopted the Obamacare laws, at least a thin skin of pretense required Congress and the President to pretend to respect the traditional, constitutionally affirmed, role of States in such matters.  To do that, Obamacare provides for State health insurance exchanges to be set up in States willing to do so.

Moreover, to encourage widest possible participation in those State exchanges, Congress included a provision that has the effect of subsidizing the cost of health insurance premiums by granting a tax credit for payments on such premiums.  Congress also created a federal health insurance exchange because, with more than a majority of State legislative bodies in Republican Party control, there was a reasonably predictable possibility that many States would not create such exchanges.

The Congress that enacted Obamacare, we must presume, knew how to draft legislative language creating a health insurance exchange.  After all, they employed such language twice:  in creating the State exchange program, and in creating the federal exchange program.  The Congress that enacted Obamacare, we must ALSO presume, knew how to draft legislative language providing that a health insurance premium tax credit would be available to certain taxpayers (based on income).  After all, Congress employed such language once:  in authorizing the allowance of a health insurance premium tax credit for eligible subscribers who purchased their health insurance through the State-created health care exchanges.

And therein, as they say, lies the rub.  Because the Congress that knew how to create exchanges, the Congress that knew how to authorize the IRS to allow for health insurance premium tax credits for certain income-based subscribers, that very same Congress, legislating through that very same exact bill, DID NOT authorize the IRS to allow for health insurance premium tax credits for certain income based subscribers who purchased their insurance through the federal exchange in their State because the State had chosen not to set up such an exchange.  (As it turned out, Congress was not entirely myopic.  More than half the States declined the invitation in Obamacare to set up a State exchange.)

Despite the absence of Congressional authorization to do so, the IRS announced, took comments on, and made final a rule allowing for a health insurance premium tax credit for income-qualified purchasers whose health insurance was bought through the federal exchange in those States without a State health care exchange.  That rule has the effect of spending federal tax monies.  But neither the Affordable Care Act, nor subsequent authorizations legislation, nor subsequent appropriations, have authorized those expenditures of federal funds by the IRS.

Remember that in the progressive/Democrat mindset, money in the hands of another as a result of a tax credit is an expenditure of federal funds.  That very reasoning is why, in every discussion regarding taxes and spending, Democrats insist that tax credits funded by such enactments must be funded through other taxes.  In other words, they argue, if you are going to give a tax credit that has the effect of reducing the total federal tax haul by, say, 1 billion dollars, then that "purchase" must be offset by other tax increases to cover the billion dollar loss.

But, setting aside the highly political nature of the seemingly intractable dispute over Obamacare, judges and lawyers ARE REQUIRED to accord a kind of respect to a legislative body's language choices.  For example, if a statute stated,  "No Motor Vehicle Operator Permit or License is to be issued to a person unless, first, the Department of Motor Vehicles obtains a copy of a birth document certified by the Department of Vital Statistics to be a true and correct copy of the original," then courts and judges, following hundreds of years of legal history and development, would know that the DMV could not accept a hand drawn, with crayon, reasonable facsimile of a birth certificate unless it bore a certification that it was a true and correct copy of an original birth certificate.  Neither courts, nor lawyers, nor governors, nor legislators, NOR EVEN PRESIDENTS, have any legal justification for pretending that a statute includes language it omits, nor omits language it includes.  Certainty in the law requires that this be so.

Returning to the appeals courts decisions and the impact of political identity of presidents making such appointments, there remains this to be said.  Six different judges participated in the making of the two appeals court decisions yesterday.  Four of those judges were appointed by Presidents who are Democrats; two of those judges were appointed by Presidents who are Republicans.  All three judges in the Fourth Circuit majority, and one judge, the dissenting judge in the DC Circuit decision, were appointed by Democrats.  Two judges, the majority in the DC Circuit decision, were appointed by Republicans.
As they say, elections have consequences.

It is not every day, however, that one consequence of elections is that potentially criminal conduct by the President or his administration will be given a wink and a nod from the bench.  But yesterday was one of those days in Richmond, Virginia, and in Washington, DC, where the dissenting judge was willing to give the wink and the nod, but failed to garner a majority.

And while some will say that raising the specter of criminality is hyperbolic,  I disagree for a well-founded reason.  For more than a century, a federal law known as the AntiDeficiency Act expressly bars federal agents and agencies from spending unappropriate funds.  That statute is direct and clear:  "An officer or employee of the United States Government or of the District of Columbia government may not ... make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation[.]"  Violation of that statute is, itself, a crime:  "An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [that] section [] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both."

Thus, not only is the IRS rule unauthorized by the Affordable Care Act, it puts the Commissioner of the IRS and IRS employees in the position of violating the Antideficiency Act.  Unlike other federal executive adventures outside the law, such as the alleged violations by the Reagan administration of the Boland Amendment, violations of the Antideficiency Act are, expressly, criminal acts subject to prosecution, and conviction carries the risk of fines and imprisonment.  The decisions of the DC Circuit and the Fourth Circuit directly conflict with each other, invite uncertainty as to the meaning and application of the Affordable Care Act, and raise the twin specters of judicial disregard for statutory language and IRS administrative disregard for Congressionally authorized appropriations.

Ultimately, these cases, one or both, will come to the Supreme Court of the United States.  The "losers" in either case can, of course, apply to the same appeals court for reconsideration.  In fact, because of the OTHER COURT'S DECISION, there are better than normal prospects in both cases that the decisions by panels of the DC Circuit and the Fourth Circuit will be reconsidered by the entire court of appeals in each case.  After all, conflicts between courts of appeals on a question of federal law are a justifiable reason for such en banc review by the whole court of a panel decision.  But there is little doubt that the Supreme Court will have the opportunity, and may have the need, to review these cases.

The opportunity will arise if any party below is dissatisfied by the outcome they got at the appeals court in their case; that outcome is assured.  The need will arise in either of two possible circumstances.  First, if, at the end of the day, the decisions of these two courts remain in conflict as to the meaning and application of the Affordable Care Act, then Supreme Court review is always helpful in insuring that a single rule of law governs throughout the United States.  Second, if, at the end of the day, the Supreme Court, in evaluating requests for hearings, concludes that one of the courts, or both, have incorrectly construed and applied the language of the Act.  For now, the uncertainty created by the Obama Administration's lawless extension of the State Exchange health insurance premium tax credit to federally operated health exchanges is compounded by the uncertainty of the conflicting decisions yesterday.

Legal observers are often invited to make predictions of future actions by courts.  And this takes me back to the topic of this post.  Since taking office, Obama has now appointed enough appeals court judges so that Democrat-appointed judges constitute majorities of the active judges in both the DC Circuit and Fourth Circuit.  Given that party of appointment is, at present glance, a direct predictor of judicial outcome, I will make this prediction:  if either appeals court grants rehearing by the whole court, then it is likely that the whole court will uphold the IRS renegade rule.  And that is a certainty that benefits no one.