Third time’s the charm:
This past week, the United States Court of Appeals for the District of Columbia Circuit, over the vigorous dissent of four judges on that court, denied rehearing en banc (legalese for an entire court rather than just a panel of three judges) in the case of Sissel v. United States Department of Health and Human Services.
Sissel is a case against Obamacare led by the Pacific Legal Foundation, arguing that Obamacare is invalid because it violated the Origination Clause.
Now, the challengers have ninety days to file a writ of certiorari (an appeal) before the U.S. Supreme Court.
This important case deals with the Origination Clause of the Constitution— which reads:
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.
The Founders included this clause primarily to balance out the unique powers the Senate wields, and to ensure that the power of drawing revenue from the people by taxing them would be initiated by the branch that was closest to them (remember, at that time the Senate was elected by state legislatures, not by popular vote) and whose members would have to stand for re-election every two years.
Cast your mind back to the time: “taxation without representation” was a big effing deal, as Joe Biden once said of ObamaCare. It is not a mere technicality that the framers of the Constitution explicitly put revenue-raising powers in the House, whose members can (and often should) be tossed out after two years. You want to raise taxes? You’d better be able to make your case to the people.
That was then, as they say. This is now:
But if it’s a tax, shouldn’t the bill have originated in the House?
As it happens, Obamacare “originated” in the House in only a very formalistic sense.
H.R. 3590, the bill that became Obamacare, was originally titled “Service Members Home Ownership Tax Act of 2009” and had nothing to do with health care.
But to secure passage of Obamacare, the Senate decided to take this bill, which had passed the House, and gut it entirely, replacing the entire text of that bill with the Obamacare title and text and keeping only the bill number.
After it passed the Senate, the House then approved the new Senate-drafted bill through a reconciliation bill.
The problem is that this doesn’t look like the bill “originated” in the House in any meaningful way.
It was as though the Senate bulldozed a house and erected an entirely new structure, but said it was the same house because it had the same address.
And so Pacific Legal Foundation has sued.
Recently, they lost their challenge before a three-judge panel of the U.S. Court of Appeals for the District of Columbia.
The Supreme Court, [Judge Nina] Pillard argues, has defined the Origination Clause as a “purposive” clause.
In other words, the original three-judge panel contends that since the main purpose of Obamacare was to expand health insurance coverage, rather to raise revenue for the general treasury—well, then the law is not a bill to raise revenue (even if, as the Supreme Court stated in its NFIB decision, the legislation has the potential to raise “considerable revenue”).
Under this precedent, the Senate could originate any tax bill, so long as some federal court was willing to hold that the “purpose” of the bill wasn’t primarily to raise tax revenue, but to do something else.
If that is the case, so much for the protections provided by the Origination Clause.
So, a law found Constitutional only because it was a tax, cannot Constitutionally be a tax. If this is what Scalia wrote after Round 2, God knows what he’ll write if John Roberts and Co. issue another get-out-of-jail-free card.
[T}his Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax … “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
No wonder we label his signature piece of shi—sorry, legislation—with Obama’s name. It is as deceitful and as full of fecal matter as he is.
On a related matter:
Most federal insurance cooperatives created under the Affordable Care Act are losing money and could have difficulty repaying millions of dollars in federal loans, an internal government audit has found, prompting the Obama administration to step up supervision of the carriers.
Daniel R. Levinson, the inspector general at the Department of Health and Human Services, said that most of the insurance co-ops enrolled fewer people than they had predicted, and that 22 of the 23 co-ops lost money last year.
Even as overall enrollments for insurance have increased, many of the co-ops are still losing money, a review of 2015 data by federal health officials shows.
Is that a Butterfield-ism I just read? Maybe they’re losing money because of increased enrollments.
We’ve covered this before, but I had to stop again to admire a 22-out-of-23 failure rate. That’s impressive, even for government work. Even for Democrat government work. Even for Obama government work.
And what’s this about not paying back loans?
Over all, co-ops have received $2.4 billion in federal loans to help pay start-up costs and to meet state solvency requirements.
“The low enrollments and net losses might limit the ability of some co-ops to repay start-up and solvency loans and to remain viable and sustainable,” Mr. Levinson said in a report analyzing the insurers’ financial condition.
That sounds a lot like “I don’t have your money.” Are you sure that’s what you meant to say?
I didn’t think so.
Dr. Martin E. Hickey, the chief executive of the New Mexico co-op, who is also chairman of the National Alliance of State Health Co-ops, said it was unrealistic to expect them to achieve a surplus right away.
“This is inherently a risky venture, a tough, tough business,” Dr. Hickey said. “There will likely be a handful of co-ops that fail. I don’t deny that. But you will probably see the red ink disappear for some plans starting next year.”
The Kentucky plan lost $50 million last year, more than any other insurance co-op, as it paid out $1.25 in claims for every dollar it collected in premiums.
“We attracted many consumers with serious illnesses,” Ms. Dunlap said. “One of our most popular plans had low premiums, low out-of-pocket costs and a large network of providers. It’s difficult, it’s uphill, but we are energetic and hopeful. Trends are going in the right direction.”
Enrollment in the South Carolina co-op stands at 70,000, up from 46,000 at the end of last year, Mr. Burgess said. “We are still losing money,” he said, “but will break even in 2016.”
With the greatest respect to the late great James Gandolfini, I think Tony Soprano would say something like: “You better fu**in’ hope so, or that’s not all that’s gonna break in 2016! I want my money, you piece of sh*t, every fu**in’ penny of it, or I’ll show you ‘energetic’! You sure picked a ‘tough, tough business’—mine! And I collect. This is me askin’ nicely. I have to ask again, and you’re going to need all those doctors to fix you up after I get t’rough with you.”
God, I miss him.
PS: In my research (if that’s not too grand a word), I noted that we’re now at about 90% coverage rate for health insurance. That number has been greeted with glee. But the number before this cluster[bleep] was around 85%. Ninety is better than 85, I get it, but were those five percentage points worth all this deceit and absurdity? Or couldn’t they have been achieved in a more honest, more direct, cheaper manner? I have to think so.