House of Representatives Wins ObamaCare Case in Court
Treasury, but in Consequence of Appropriations made by Law.” U.S. Constitution, Article I, section 9.
Today, a federal judge ruled in favor of the House of Representatives in an ObamaCare case. And this evening, Patterico reads the legalese so you don’t have to. (Note: if your time is very short, I have the short summary here.)
The provisions of ObamaCare that make health insurance cheaper include the following:
Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers.
It is section 1402 which is challenged, as the funds were never appropriated by Congress, as required by the Constitution.
Section 1402 is unlike the tax credits portion of section 1401. Section 1401 actually constitute a “permanent appropriation” which lasts until repealed, under 31 U.S.C. § 1324, which contains a permanent appropriation for “Refund of internal revenue collections.” In other words, the ObamaCare tax credits are refundable, and there is always going to be money from the federal government to give you your tax refund.
By contrast, the “cost sharing” borne by insurance companies, which are initially advanced by the Treasury, require annual appropriations by Congress. HHS even conceded this in a document sent to Congress. Yet no such Congressional appropriation was ever made.
The administration argued that Congress did authorize the advance payments fro the Treasury. Of the Obama administration argument, the judge wryly notes: “It is a most curious and convoluted argument whose mother was undoubtedly necessity.” Describing the argument in detail would put even the most diligent blog reader to sleep. Trust me when I say that it is King v. Burwell on steroids; in other words, it is “ignore the clear statutory language so’s we can make this thing work” style claptrap. Hey, it was good enough for the King v. Burwell majority! But it ain’t working on Judge Collyer, and God bless her for it.
(QUICK ASIDE: It is unfortunate to realize that lower courts actually have to use the King v. Burwell case as precedent in other cases, and essentially argue that, while perhaps the Supreme Court rewrote language in that case, that does not mean that courts just get to rewrite text whenever they feel like it. Only the Supreme Court can do that, apparently, and only with five votes!)
The case illustrates that it is, in fact, a bit lazy to argue that House of Representatives’ lawsuit regarding ObamaCare was a giant dodge, and that the GOP should simply have used the power of the purse. As it happens, they did! That is exactly what happened here. In essence, Congress failed to fund a portion of ObamaCare, and our media missed it. (Did you read about the defunding of a portion of ObamaCare? I certainly didn’t!) But, being the narcissistic entitled Emperor that he is, Obama did his characteristic thing and just ignored the Constitition. He appropriated the money anyway, despite the fact that only Congress has the constitutional authority to do so.
The court cites precedent to show that it is not absurd for Congress to authorize a program permanently, but not enact a permanent appropriation for that program. Indeed, the court notes, most federal entities operate in this fashion. For example (this is my example, not the court’s), there is no sunset provision for the Department of Education (unfortunately). The department does not disappear because Congress does not say every year “The Department of Education still exists.” But if Congress refuses to fund it in any given year, Obama doesn’t just to take the money from the Treasury anyway, because the DoE is a “permanent” department of the federal government. The same goes for the section 1402 cost sharing.
One side note: I have warned you, again and again, about the dangers of looking to Congressional “intent” as reflected by “legislative history.” This was a hobby horse of the late Justice Scalia, and I feel duty-bound to emphasize it strongly now that he is not around to make the argument. Note the sleight of hand the Obama administration used:
Second, the Secretaries point to statements by individual Representatives and Senators whose description of the “cost” of the ACA presumed that Section 1402 would be funded. This argument, too, fails to establish an actual appropriation. “An agency’s discretion to spend appropriated funds is cabined only by the ‘text of the appropriation,’ not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history.”
If some Democrat hack stands up and flaps his gums about how the money will always be there, that does not trump Congress’s refusal to permanently appropriate the money, or the Constitution’s requirement that Congress appropriate the money. Giving weight to “intent” runs the ever-present danger that courts will pay attention to this kind of irrelevant nonsense. This is why only the text matters, as fairly understood by those subject to the law’s provisions.
Worse, Obama is trying to make opinions from the New York Times relevant to the interpretations of laws passed by Congress. I am not kidding. Here is the quote:
The Secretaries have asked this Court to consider statutes that were enacted years after the ACA; floor statements by individual Members of Congress; an HHS “issue brief” on potential fiscal consequences; a New York Times article; the Hyde Amendment; a CMS webinar from 2013; excerpts from the House Budget Committee’s Compendium of Laws and Rules of the Congressional Budget Process (2015 ed.); CBO scoring terminology; and a House Conference Report from 1997.
No. The answer is no. The New York Times does not get to decide what our laws mean. No, no, no!
The bottom line here is that the money continues to come out the Treasury unconstitutionally. The court has ruled against Obama, but it has stayed its ruling pending appeal. The unconstitutional status quo remains.
For now.
P.S. Someone on Twitter claimed that we should thank Marco Rubio for this. I’m pretty sure they have confused the Risk Corridors Program, which Rubio opposed, with the section 1402 Offset Program. I asked Gabriel Malor about this, as he seems to have followed the issue closely, and he appeared to agree.
UPDATE: It’s probably worth noting that, under the law, the cost-sharing provisions are borne by the insurance companies in the first instance. The “cost sharing” payments paid by insurance companies under section 1402 are not dependent on the insurance companies receiving offsetting payments from the Treasury — payments that, we now know, were not authorized by Congress. So the practical effect of this will be that the insurance companies must pay cost-sharing payments, for which they expected reimbursement from the Treasury — reimbursement that they will not be receiving. The net effect? The insurance companies will either raise premiums or exit the exchanges.
January 20, 2017 can’t come soon en– oh, crap. I forgot.
Patterico (86c8ed) — 5/12/2016 @ 9:14 pmIn the 1990s, President Clinton created (by executive order) a new “national scenic area” in the east Mojave desert. Congress was so offended by this that for years they appropriated $1 for BLM to use on the scenic area.
aphrael (3f0569) — 5/12/2016 @ 9:14 pmMaybe I’m just dense, but what does this mean even if it’s upheld?
Is the executive branch supposed to pay back the legislative branch?
Years ago, this may have mattered to get Obamacare overturned. My feeling is that it’s too entrenched now to just simply be overturned/ repealed.
malclave (4ddf38) — 5/12/2016 @ 9:17 pmIt’s unbelievable that this is where Democrats have taken us. Arguing that TG E President can appropriate money, something the Constitution puts solely in the powers of Congress.
SPQR (a3a747) — 5/12/2016 @ 9:21 pmI imagine it will only have application going forward.
Patterico (86c8ed) — 5/12/2016 @ 9:34 pmIs not the wallnotyetpaidforbyMexico authorized by law, but not appropriations? What is BHO waiting for? After all, the law is the law is the law. Right?
Didn’t the execrable Omnibus under which our government now operates expressly restore the provisions which reimburse losses under Obamacare for any exchange/insurer? Wouldn’t that obviate and make moot this lawsuit? I could be wrong, but they did cram some type of reimbursement mechanism in there while we were all consumed with not SHUTTINGDOWNTHEGUBMENT.
Ed from SFV (3400a5) — 5/12/2016 @ 9:44 pmIt’s good to keep firmly in mind, as Chief Justice Roberts so poignantly demonstrated, that the US Supreme Court is a branch of the federal government. And, as such is structurally in an adversarial relationship to the states and the people.
ropelight (ae2ecc) — 5/12/2016 @ 9:46 pmIndeed. One of my structural ideas is to have the states, rather than the Senate, confirm Justices. Perhaps even have a role in their selection.
Patterico (86c8ed) — 5/12/2016 @ 9:49 pmif a tree falls,
http://newsbusters.org/blogs/nb/nicholas-fondacaro/2016/05/12/nets-cover-obamacare-fail-report-ruling-against-illegal-funds
narciso (732bc0) — 5/12/2016 @ 10:01 pmIt is very satisfying to be mad at Obama. Makes me feel like I have the past seven years, rather than the past six when I have been mad at Trump.
Patterico (86c8ed) — 5/12/2016 @ 10:06 pmI published this post purely on the basis of the decision, while having read barely any commentary (I think I skimmed Ed Morrissey’s post, from which I got the link to the court decision — although I think his link was broken and I had to guess at how to complete the URL).
If anyone thinks I have the analysis wrong, please let me know. I think it’s right.
Patterico (86c8ed) — 5/12/2016 @ 10:09 pmAs Patterico mentioned, the opinion is from United States District Judge Rosemary M. Collyer, a well-respected 2002 Dubya appointee to the U.S. District Court for the District of Columbia — the trial court where spectacularly important constitutional litigation starts out more often than everywhere in the country else put together. Her background was as a labor relations lawyer, including a spell as General Counsel of the NLRB during the Reagan Administration.
I’m proud to say that in 1990-1991, while she was still in private practice in Washington, D.C., she and I were co-counsel for Greyhound Lines, Inc. in its Chapter 11 bankruptcy (which had been occasioned by a violent strike of the drivers’ union, which in turn drove the company into bankruptcy court). Our work culminated in a two-day-long mini-trial that enabled Greyhound to emerge from Chapter 11; had the drivers’ union and the Department of Labor (which supported the union) won instead, the drivers’ union would have ended up busting Greyhound into eight regional bus companies owned by … their drivers. Working with Rosemary Collyer was one of the most successful and enjoyable professional collaborations I’ve ever had. And she is one of the most able, articulate, and professional lawyers I’ve ever had the privilege of meeting. She’s also a helluva cool lady, and I will always be a thorough-going fan of hers.
I won’t have a chance to read the full opinion until the weekend — so thank you, Patterico: With that marvellous precis, I have no trouble following what happened and why from your post!
The news headlines should be: “COURT FOLLOWS CONSTITUTION” — but how will the media spin it instead? Probably: “Rogue BusHitler appointee again blocks the Sainted Obama’s sacred mission to save the world.”
Beldar (fa637a) — 5/12/2016 @ 10:12 pmP.S. Someone on Twitter claimed that we should thank Marco Rubio for this. I’m pretty sure they have confused the Risk Corridors Program, which Rubio opposed, with the section 1402 Offset Program. I asked Gabriel Malor about this, as he seems to have followed the issue closely, and he appeared to agree.
Patterico (86c8ed) — 5/12/2016 @ 10:14 pmWell, as long as I’m on a roll, I’m not keen on the 17th amendment. Popular election of Senators deprives the states of the power in Congress the Founders intended. The 17th destroyed the check states had to limit the power of the federal government. Once the 17th was ratified the federal government could and did run roughshod over the states.
You want limits on federal power? Restore the system of checks and balances the Founders built into the Constitution. 2 Senators from each state elected by the state legislatures. Only a majority of the states has the combined strength to balance the power of a run away federal government and check infringements on the rights of the people.
You want limits on federal power? Restore power to the states as the Founders intended.
ropelight (ae2ecc) — 5/12/2016 @ 10:16 pmUPDATE: It’s probably worth noting that, under the law, the cost-sharing provisions are borne by the insurance companies in the first instance. The “cost sharing” payments paid by insurance companies under section 1402 are not dependent on the insurance companies receiving offsetting payments from the Treasury — payments that, we now know, were not authorized by Congress. So the practical effect of this will be that the insurance companies must pay cost-sharing payments, for which they expected reimbursement from the Treasury — reimbursement that they will not be receiving. The net effect? The insurance companies will either raise premiums or exit the exchanges.
Patterico (86c8ed) — 5/12/2016 @ 10:22 pmThe best way to do that is to elect a president who believes in federalism. Whoops! that guy was steamrolled by a reality show buffoon elected by an ignorant public. Oh well.
Patterico (86c8ed) — 5/12/2016 @ 10:24 pmThank you! Thank you! Thank you! For your comments on legislative intent. It has become one of the most disingenuous and insidious ways for judges to create law out of fiction. I still remember how horrified I was during my Legislative Law class reading a book about the development and passage of a major bill during the 60’s-70’s. Even back then they purposely wrote bills using vague language because they admitted that if they wrote what they meant it would not pass. They counted on using the legislative and committee process to create the record that they would convince a court to use to “properly” interrupt the language of the law.
It should never be the judiciaries role to make a law work. Define in plain language. If the legislative body didn’t write it they way they meant, then by all means pass a new bill with the exact language. If it is an important reason, they should easily get the same people to vote for it.
Now we start the clock for the inevitable capitulation by the GOP in Congress after they wilt under the pressure of their “colleagues” and “impartial” media.
sirkev (9f6b9d) — 5/12/2016 @ 10:27 pmForgive me this bragging war-story, but I’m going to tell it because it’s just an example of what a smart and capable lawyer and legal thinker Rosemary Collyer is:
We were trying this case on a “chess-clock” — each side had precisely eight hours and zero seconds to present its case and to rebut the other’s case. And the case was tried with spectacularly limited discovery beforehand — we compressed what would normally have taken the NLRB seven years to process into six weeks. So this was a crazy kind of trial, a one-off for which the judge had very creatively and wisely (per our suggestions) written a special and unique set of procedural rules. And it was very much “trial by ambush” because of the limited discovery.
Each side had been required to reserve its final hour, on the second day, for closing argument. Our team’s original plan had been that I would do the first three-quarters of the hour, focusing on the evidence. And in this plan, Ms. Collyer would then do the last quarter-hour of Greyhound’s argument — focusing particularly on aspects of the National Labor Relations Act and the procedural aspects of the labor relations battle between Greyhound and its drivers’ union. Basically we were splitting facts and law, 3/4th and 1/4th.
But about three minutes into my opening, it had become clear to me from the questions I was getting from Bankcuptcy Chief Judge Richard Schmidt that he had a masterful command of both sides’ evidence, and he was really more interested in some labor law details.
I paused at that point, thought furiously for about five seconds, and then asked if I could have 30 seconds to consult with co-counsel before continuing. Judge Schmidt said, “It’s on your clock, use it however you want.” So I turned to Ms. Collyer and said, “He wants to hear your part, not mine. Let’s ditch the plan. Can you argue for 55 minutes instead of 15? We’ll get more bang for that buck.”
She stared me in the eye, shrugged once, stood up very straight, and strode forward. I sat down, and she then and proceeded to deliver one of the most persuasive and coherent arguments, responding to constant questions with aplomb and clarity, that I’ve ever had the pleasure of watching. It cinched the win, I have zero doubt in my mind.
Beldar (fa637a) — 5/12/2016 @ 10:31 pmRestore power to the states, like the Constitution says. So says the fool who voted for the guy that said not only should the Central Government keep all the millions of acres of land Carter, Clinton, and Obama appropriated, but also the Central Government should have total control over it.
John Hitchcock (ddb4db) — 5/12/2016 @ 10:40 pmGreat story, Beldar! A tribute to you as well as Judge Collyer.
Patterico (86c8ed) — 5/12/2016 @ 10:42 pmOne can no more expect consistency in principles from Trumpkin shills than from Trump himself, can one?
It ain’t about principles. It’s about some sick hero worship, the most spectacular con job in the history of the world to date.
Beldar (fa637a) — 5/12/2016 @ 10:43 pmI thought you’d appreciate that story, Patterico. The kind of legal mind it takes to ramp up, on two seconds notice, from a 15-minute argument to a 55-minute argument — well, she was just jaw-droppingly agile. We didn’t use that phrase then, but she had a “drop the mic” performance.
Beldar (fa637a) — 5/12/2016 @ 10:45 pmHitchcock, this is an adult discussion. Take your hatred to some other thread. You aren’t making a useful contribution here.
ropelight (ae2ecc) — 5/12/2016 @ 10:52 pmIt’s about some sick hero worship, the most spectacular con job in the history of the world to date.
Wrong again Beldar, that was 8 years ago. BTW did you vote for Barack Obama in either election? Somehow you just seem like the type.
ropelight (ae2ecc) — 5/12/2016 @ 10:56 pmAs for whether it’s a tribute to me:
Two of my partners — bankruptcy specialists, who’d been standing aside while we tried this labor-law case in bankruptcy court — were watching the hearing. And they’d been in on “the plan” to split the argument 45/15. So after the hearing, they walk over to me and they say: “Dyer, did you change the plan on the spot?”
I sort of puffed myself up a bit and said, “Yeah, and I’m confident it was the right decision.”
At which one of my partners scoffed: “It’s probably the best on-the-spot decision I’ve ever seen you make, Dyer — just remember, it was a decision to sit down and shut up. Absolutely one of your finest moments!”
And he was exactly right.
Beldar (fa637a) — 5/12/2016 @ 10:57 pmHa! But he was right!
Patterico (86c8ed) — 5/12/2016 @ 11:04 pmropelightweight,
With those caustic remarks, it doesn’t appear you’re trying to convince Cruz’ voters to vote for Trump in November. Do you really want him to win?
Cruz Supporter (102c9a) — 5/12/2016 @ 11:04 pmRopelight, I stated a fact. That you can’t handle the truth is so obvious to so many people, it’s well past the ridiculous stage. And for you to go around accusing people of impeccable Conservative and Libertarian bona fides of voting Obama all over the place says a lot more about you than it does about them. Remember, you’re the one voting for the lying Leftist, not us.
John Hitchcock (ddb4db) — 5/12/2016 @ 11:28 pmYou don’t even want to discuss the fact Trump declared the Central Government needs to keep all that land and have total control over that land, because it flies directly in the face of what you claimed you stand for.
But don’t worry, Patterico has called you worse things than merely a fool.
John Hitchcock (ddb4db) — 5/12/2016 @ 11:31 pmHitchcock, you’re such a transparent buffoon. If you want to discuss federal land grabs then go ahead and raise the topic. But trying to provoke me with insults in order to focus attention on one of your pet gripes isn’t going to work. Honesty and forthrightness work – insults and sneaky comments don’t.
ropelight (ae2ecc) — 5/12/2016 @ 11:53 pmThe net effect? The insurance companies will either raise premiums or exit the exchanges.
No, that will not be the effect. What will happen is that the Silver 94 and Silver 87 plans will end.
There are two layers of subsidies. The first, which is not affected, is the tax-credits that offset premiums for some people, depending on their income and on, essentially, their age.
The second, and not widely understood, set of subsidies occur for persons slightly above the Medicaid threshold. Not only doe they get the refundable tax credits against their premiums, but they also get reduced co-pays, lower deductible amounts and a lower maximum out-of-pocket.
These “Enhanced Silver” plans are only available to people whose estimated income is under a lower amount (about $31K for a couple for the Silver 87, much less for the Silver 94). Now, since this is based on modified adjusted gross income, it is possible for someone living on savings to arrange a set amount of income (perhaps from a 401(k) and get one of these plans. Or one could lie — co-pay subsidies are not refundable.
Right now the insurance companies in the affected district are on the hook (or maybe the State is). What this means is that this form of subsidy for the working poor will end. Since this is a core constituency for Obamacare, it’s a pretty big cut in the death of a 1000 such.
Kevin M (25bbee) — 5/13/2016 @ 12:19 amIndeed. One of my structural ideas is to have the states, rather than the Senate, confirm Justices. Perhaps even have a role in their selection.
Well, when the state legislatures elected Senators, this was the effect. But direct election changed that.
Kevin M (25bbee) — 5/13/2016 @ 12:22 amYou want limits on federal power? Restore power to the states as the Founders intended.
Yes, but I am unconvinced that it is possible to repeal the 17th Amendment, and even if you did it probably would do no good; communications are too good and the parties are too strong.
A better thing would be to decouple the process of state-originated amendments from the scary, cumbersome and complete overkill Article V Convention. Instead, let any 2/3rds of states pass an identical resolution of Amendment, and then if 3/4ths ratify it (including the original 2/3rds, again), it’s an amendment. This isn’t the age of sail and horseback any more.
Kevin M (25bbee) — 5/13/2016 @ 12:35 amYou would think such plain words in the Constitution are easily understood but we have Lawyers to tell us otherwise.
Oh yeah and Lawyer “Precedent” — a concept whose intent over time is to fundamentally distort the Constitution and achieve whatever political outcome one side wants.
But Trump is a liar who flip flops?
Biggest lying liars and most corrupt are Lawyers. And most Politicians are Lawyers.
Cafone 2016! beats Criminillary Clinton.
Rodney King's Spirit (e2dd8e) — 5/13/2016 @ 7:12 am#7 #8 — the problem is not who appoints them, the problem is TENURE corrupts.
And all GOVT EMPLOYEES are vested in more Govt.
This is why no Govt Employee should have the right to vote in elections effecting their employment status. Because they are bought and sold out in exchange for their comfy jobs. Even the esteemed men/women/transgenders of the law on the SCOTUS.
Rodney King's Spirit (e2dd8e) — 5/13/2016 @ 7:17 amIf we build a time machine, maybe we could go back to 1913 when both the 16th (federal income tax) & 17th (Senators by direct election) Amendments were ratified. What a disastrous year.
Cruz Supporter (102c9a) — 5/13/2016 @ 7:19 amPower by the Bureaucracy is never voluntarily given up. It must be pried away from cold dead hands if needed.
Rodney King's Spirit (e2dd8e) — 5/13/2016 @ 7:21 amIt is very satisfying to be mad at Obama. Makes me feel like I have the past seven years, rather than the past six when I have been mad at Trump.
It seems like if you really, truly felt that way, Pat, you wouldn’t even have to state it. That it would come so natural to you, you wouldn’t have to remind yourself about it. That’s why I’m not sure if you’re unconsciously more of a “sheeple” about the ongoing socio-political degradation of the US than you’re aware of. If so, all your angst — your sturm and drang — about the 2016 election brings to mind a case of the proverbial closing of the barn door after the horse has bolted.
Mark (3a3812) — 5/13/2016 @ 7:24 am^ Actually, I just realize you, in fact, have given yourself away based on your timeline. Or sort of a Freudian slip. If you really were disgusted by “Goddamn America” — as any non-liberal but certainly devout conservative should be — you’d have said the “past eight years” and not qualified that with “seven,” much less “six.”
Mark (3a3812) — 5/13/2016 @ 7:27 amAs I keep saying, in order to be a devoted Trumptard like ropelight you either must be born without any sense of self-awareness or have it surgically or chemically removed.
He did raise the issue, ropelight. Are you that dense? At the S.H.O.T. Show last year, in an interview with Outdoor Life, your Precious revealed his governing philosophy. He believes in a large, all-powerful centralize government.
http://bigthink.com/strange-maps/291-federal-lands-in-the-us
The feds literally own the west. When he was directly asked about returning that land to the states or privatizing it he said we couldn’t do that. We have to keep that land “great.” You say you want to return power to the states, start with returning land to the states. But your god’s kneejerk reaction is that we can’t even do that. Greatness = the federal govenrment.
You rejected the one guy who would have done what you claim you wanted and instead are a fanboi of a man who is no better than Hillary! or the Obamessiah. Who are diametrically opposed to doing what you claim you want. Since actions speak louder than words, you are clearly a hypocrite who does not want what you flap your gums about.
If this is supposed to be an adult discussion, then don’t participate. Dustin noted on another threat that arguing with the Trumpkins is like arguing with seven y.o. girls. It’s all emotions, and the Trumpkins can both ignore the facts and shriek about them at the same time.
I noted that was a derogatory comparison to seven y.o. girls as with them it’s usually one thing or the other.
The fact of the matter is you can not square the circle between what you say you want and whose kool-aid you are drinking.
Steve57 (eca648) — 5/13/2016 @ 8:09 amRKS, your view of lawyers is childlike. I hope you never need one.
Beldar (fa637a) — 5/13/2016 @ 8:49 amPatterico (86c8ed) — 5/12/2016 @ 9:49 pm
How would that work?
Because this would take a lot of time, they’d have to be nominated before there were vacancies.
Maybe a president can nominate up to 3 justices every two years, or more precisely, can nominate one after at least two years have passed since the first of the previous two still actively seeking approval was nominated; and the smaller branches of a bicameral state legislature get to confirm, and have seven years to do it, and when a vacancy occurs, the potential justice approved of by that time by the most states goes on the court, if at least six months have passed since his nomination, except there must always be at least 3 eligible.
What way would that tilt the court?
One thing: It would prevent a deadlock. We can have that now.
If Hillary is elected and the Senate stays Republican (not that likely) there might not be any new Supreme Court justices for several years. In New Jersey a deadlock remained for six years, until recently Governor Chris Christie negotiated an appointment with the State Senate. (I think New Jersey allowed temporary appointments but I may be wrong)
Sammy Finkelman (643dcd) — 5/13/2016 @ 10:48 amexcept that a justice must have been confirmed by at least one third of all the legislatures.
Sammy Finkelman (643dcd) — 5/13/2016 @ 10:49 amBetter still, have the states constitute the senate. Instead of having senators elected to represent their state for six years, being independent between elections, have the senate consist of the 50 state governors, each of whom may appear in person or send a representative.
Milhouse (87c499) — 5/13/2016 @ 11:07 amI disagree. If you think being elected by the legislatures made the senators the servants of those legislatures, think again. The Canadian government is elected by the House of Commons; you’d think this make it their servant, but in fact it’s the other way around — the government must keep a tight control over its MPs, to make sure they stay loyal. If state legislatures elect senators, then state elections turn into senatorial elections; people will vote for a state legislator purely on the basis of whom s/he will support for senator, just as we now vote for electors on the basis of whom they will suport for president.
Also bear in mind that before the 17th amendment senators were elected by the state legislature, but then for the next six years they were independent. They did not take orders from their legislatures, and could not be recalled. It would be six years before they faced the legislature again, and when it came to a vote each party’s legislators could be relied on to vote for their party’s candidate.
If you want to make the senate the state’s house, cut out the middle man and make senators directly responsible to their state governors, serving at their pleasure, or indeed merely as their ambassadors.
Milhouse (87c499) — 5/13/2016 @ 11:17 am12.
I’m pretty sure that’s right.
There are 3 ways the federal government subsidizes insurance policies under Obamacare,
1) Subsidies of premiums – which is an advance tax credit, and there will be problems with people owing money to the IRS there.
2) Payments of co-pays and deductibles – which I didn’t hear till now was legally vulnerable. I actually didn’t understand much about this. Why wasn’t this done as a refundable tax credit to the insurance companies? The senior citizen rent increase exemption in New York City is done as a refund or reduction of property taxes.
3) Payments of money to insurance companies that lose money. They were supposed to subsidize each other, but there has been a net loss.
I said about Halbig that that was not an oversight, nor was there any plan to force states to establish exchanges, but Congress deliberately created a train wreck, by pretending all states would establish exchanges but doing nothing to actually try to force that to happen, because they wanted to keep the 10-year cost of the PPACA down when it would be estimated by the CBO, which they could do by eliminating most administrative costs. And Senators Harry Reid and Charles Schumer and the few who who understood this, but intended to fix that in the next Congress (hopefully also maybe tehy could scare a few more states into establishing exchanges)
But the Democrats lost control of the House of Representatives in the 2010 election.
Creating train wrecks = must pass legislation, is not not at all rare in Congress. We get that with the debt ceiling, for instance, or with the fact there are annual apprpriations.
The only surprising thing is that they did in two ways at least with the PPACA. Probably when it was first drafted, before they had to ram it through Congress by passing the Senate bill without amendment, they assumed it would become popular enough so that nobody would seriously want to disrupt things by not passing the must pass legislation, and meanwhile it gave Congressional Democrats some leverage over the president.
But the Republicans were so opposed to Obamacare, which also had not come into effect before 2014, that they were not all amenable to passing the must pass legislation to make it work. So the Obama Administration tried to get along without it as much as possible. They created healthcare.gov, which was not at all anticipated in the bill (it was anticipated the Secretary of HHS might create a website for each state ready to be handed over to that state, or a non-profit group if a state rtefused to take it) and they ddin’t try to get an appropriation for the co-pays and deductibles. they ddin’t want to revisist any of the legislation.
As Kevin says, Obamacare is doomed anyway by the death of a thousand cuts.
Sammy Finkelman (643dcd) — 5/13/2016 @ 11:18 amNo, it wasn’t. The idea that direct election took power away from the states is just stupid. Senators are still elected by their states, just as they always were, and so they still represent their states interests as much as they ever did. The 17th amendment merely changed the answer to “Who is ‘the state’? Is it the legislature or the people?”. The legislature is supposed to represent the same people who now elect the senator, so how is the change significant?
Of course in reality the 17th amendment meant that candidates have to appeal to millions of voters instead of carefully lobbying a few dozen. It’s harder to pay off a few million voters than a few dozen state legislators. And once elected senators were as free then as now to do whatever they liked.
Milhouse (87c499) — 5/13/2016 @ 11:28 amWhat purpose does the first step serve? Why not just let 3/4 of the states pass any amendment they like?
Milhouse (87c499) — 5/13/2016 @ 11:29 amSteve, you spend too much time and energy attacking me instead of making an intellectual, or at least entertaining, contribution. You can do it, I’ve seen it. So, grow up, face facts -> your guy lost and there’s nothing you can do about it, nothing constructive anyway.
ropelight (bff1e7) — 5/13/2016 @ 11:30 amMore generally, nobody who derives a significant portion of their income from some unit of government (city, county, state, or USA) should be allowed to vote in elections for that unit.
Milhouse (87c499) — 5/13/2016 @ 11:30 amThe 16th amendment only affected income from investments. Income from labor (which is where most of us get almost all our income) has always been taxable.
Milhouse (87c499) — 5/13/2016 @ 11:32 amSpeaking of entertaining, it’s amusing how you alternate between beclowning yourself and then when called on in pretend to be loftily above it all. Just curious; do you hallucinate that act is fooling anybody besides yourself?
Steve57 (eca648) — 5/13/2016 @ 12:48 pm