New State Data Shows the Real Story Behind King v. Burwell

by Nina Owcharenko: Every day there seems to be another article focused on how many individuals might lose their subsidies if the Supreme Court rules in favor of the plaintiffs in the King v. Burwell case.

Yet, an even bigger group of individuals harmed by Obamacare has an equally good claim for relief that hasn’t gotten as much attention—the people who, thanks to Obamacare, must pay more for health insurance but who never got subsidies.

The Obamacare subsidies were intended, in part, to hide the law’s unpopular effects. At their root, Obamacare’s costly regulations, dictating what insurers can sell and what individuals and employers can buy, have resulted in premium costs going up, not down. In the 34 states potentially affected by the Court’s ruling, those regulations have driven up costs not only for the estimated 6.4 million receiving coverage subsidies, but also for at least another 15 million who have been forced to pay more for their health insurance without getting any subsidy.

Last month, The Heritage Foundation published a report highlighting that on average premiums could decrease by as much as 44 percent for young adults and 7 percent for near retirees if Congress, in response to a ruling in favor of the plaintiffs in King v Burwell, simply eliminate three of the most costly Obamacare regulations—the age-rating rules, the actuarial value restrictions and the benefit mandates—in the affected states.

Last week, Heritage released state-specific data for the 34 states potentially affected by the King v. Burwell ruling.

For example, in Arizona, premiums could drop by as much as $1,044 for a 21-year-old and $402 for a 64-year-old. Similarly, in Iowa, premiums could decline by as much as $1,068 for a 21-year-old and $486 for a 64-year-old. In Ohio, premiums could be reduced by as much as $1,125 for a 21-year old and $633 for a 64-year old.

Congress’ first step in responding to the Court’s ruling should be to get rid of the Obamacare regulations that needlessly increased the cost of coverage for both those with and without subsidies.
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Nina Owcharenko is director of the The Heritage Foundation Center for Health Policy Studies which conducts research and policy prescriptions on federal and state health care reform levels, Medicare and Medicaid, children’s health and prescription drugs.

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Tags: Nina Owchaenko, Heritage Foundation, Supreme Court, State data, real story, King v. Burwell To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

There's Broad Public Support for Congress to Reduce Insurance Costs in Response to King v. Burwell

by Nina Owcharenko: By the end of June, the Supreme Court is expected to issue its decision in King v. Burwell, the case that centers on whether the Obama administration overstepped its authority when it ordered the Internal Revenue Service to permit payment of Affordable Care Act subsidies to individuals enrolled in the federal exchange.

Should the Court rule against the administration, subsidies no longer would be available to individuals who purchased coverage through HealthCare.gov, the federal website, in the 34 states that chose not to establish their own state-based exchanges. It also would mean the Obamacare employer mandate would be effectively unenforceable and more individuals would qualify for an “affordability” exemption from the law’s individual mandate to buy insurance.

As Congress works to respond to the possible ruling, we must remember the subsidies were intended, in part, to mask the fact the law made health insurance more expensive. Consequently, any congressional response should start by exempting individuals, employers and insurance plans in states without state-run exchanges from the regulations and mandates that increased health insurance premiums to start with.

A recent poll found broad public support for this approach. The survey asked respondents the extent to which they agreed or disagreed with each of several different statements about what Congress should do in response to the Court’s decision.

The recommendation that registered the highest level of support—73 percent of the voters surveyed—was the idea that “Congress should remove Obamacare’s mandates and regulations that increase the cost of health care and disrupted health care coverage for millions of Americans in the first place.”

A recent study from The Heritage Foundation quantifying the effects of those policy changes found that removing the most costly Obamacare insurance regulations could reduce premiums for the lowest-cost plans by 44 percent for young adults and even 7 percent for pre-retirees. Moreover, lower premiums not only would benefit those who might lose their subsidy but also millions of additional Americans whose coverage was made more expensive by the law’s regulations but did not receive any offsetting subsidy.

Indeed, in 2014, in the 34 states without their own exchanges, nearly 21 million Americans with individual or small employer group coverage were subject to the law’s costly new regulation, but only about 4.5 million of them qualified for a subsidy to offset those higher premiums.

Any response to a ruling against the administration in King v. Burwell should focus first on removing the Affordable Care Act’s benefit mandates and regulations that have driven up the costs of coverage for millions of Americans.

Congress will find that to start with making coverage more affordable not only will be popular but will reduce both the number of individuals who still need assistance buying coverage and the amount of that assistance. That would be a win-win-win.
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Nina Owcharenko is director of the The Heritage Foundation Center for Health Policy Studies which conducts research and policy prescriptions on federal and state health care reform levels, Medicare and Medicaid, children’s health and prescription drugs.

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Tags: Public Support, Congress, reduce insurance costs, King v. Burwell, Obamacare, high premiums, Nina Owchaenko, Heritage Foundation To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

Cartoon: Obama on King v. Burwell

Editorial Cartoon by Glenn Foden

Heritage experts Ed Haislmaier and Andrew Kloster address the King v. Burwell case, which was heard by the Supreme Court Wednesday:What is the King v. Burwell case about?

The question before the Supreme Court is whether the Obama administration overstepped its authority in issuing an IRS ruling that conflicts with the Obamacare statute. The statute allows payment of Obamacare subsidies only to individuals who obtain coverage “through an Exchange established by [a] State.”

However, the IRS rule allows subsidies to flow to individuals who get coverage through a federally established exchange as well. This interpretation was made after it became clear that many states were unlikely to set up their own exchanges because of the cost and complexity involved.

The federal government set up an exchange for the states that did not create their own—eventually 34 states—and distributed subsidies to individuals participating in them, even though the Obamacare statute seemingly did not authorize subsidies in such cases.

Who are the plaintiffs and what are they objecting to?
The plaintiffs are residents of Virginia who object to Obamacare’s individual mandate. Without a subsidy, their income levels would allow them to qualify for an “affordability” exemption from the mandate because the cost of coverage would likely be more than 8 percent of their income.

But because Virginia is a state that declined to set up a state exchange, the federal government has done so, and the administration’s regulation extending subsidies to individuals buying coverage through the federal exchange has the effect of reducing their cost of coverage relative to their incomes to the point that the “affordability” exemption no longer applies. Hence, the plaintiffs must either purchase coverage (and pay any portion of the premium that exceeds the subsidy) or pay a fine, both of which they object to.

What are the direct effects of a ruling if the Court strikes down the administration’s regulation?
The U.S. Treasury would be barred from paying Obamacare subsidies to individuals who live in states that have not established their own exchanges. There are currently 34 states that have not established their own exchanges.

How many people are likely to be directly affected by the ruling?
The most realistic estimate is that, in 2015, roughly 5.5 million people in the 34 states in which the federal government operates the exchange are expected to receive Obamacare subsidies for insurance purchased through the federal exchange. The subsidies compensate in part the effect of Obamacare increasing the cost of coverage. Thus, any dislocation is yet another in a longer list of harmful effects of the law.

Are there any indirect effects of such a ruling against the administration, and what are they?
Individuals in any of the 34 affected states whose financial circumstances are similar to those of the plaintiffs in this case might also qualify for an “affordability” exemption from the individual mandate because their unsubsidized cost of coverage would likely be more than 8 percent of their incomes.

Virtually all employers in states without their own exchanges would effectively be exempt from the employer mandate. That is because the statute specifies that an employee obtaining Obamacare subsidies through an exchange is the trigger for enforcement of the employer mandate. In the event that the Supreme Court rules against the administration, this trigger would be removed.

What should be done if the Court rules against the administration?
Congress should exempt individuals, employers and insurance plans in states that do not have a state exchange from Obamacare’s costly rules, regulations and mandates. The exemption should include items such as Obamacare’s rating rules and benefits mandates, as well as formally exempting residents of the affected states from the individual and employer mandates. Exempting affected individuals from provisions in Obamacare that increased health insurance premiums would enable those individuals to obtain more affordable coverage. As a result, it would at least partially—and possibly in some cases, entirely—offset the financial effects of losing subsidies.

In anticipation of such congressional efforts, states should pass legislation that would ensure a smooth transition from Obamacare-mandated coverage back to coverage regulated by the states. States should take the opportunity to review and assess their pre-Obamacare rules and regulations to make them as market-based and patient-centered as possible.

What should be avoided?
Congress should avoid perpetuating the complex and costly subsidies in Obamacare. The design of the subsidies creates major financial incentive for millions of Americans to shift to plans that qualify for the new subsidies; it involves additional rules, restrictions, and penalties; and is administratively complicated.

States should not pursue efforts to adopt a state exchange. States gain no meaningful flexibility from administering the exchanges in lieu of the federal government, and their long-term costs would fall squarely on the states, since any state implementing a state exchange must develop its own revenue source to fund the exchange’s annual operations.

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Tags: Glenn Foden, Editorial Cartoon, Obamacare, President Obama, Supreme Court, King v. Burwell, Heritage Foundation, Ed Haislmaier, Andrew Kloster To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

SCOTUS Releases Divided Decisions | Obama declares 'The Affordable Care Act Here To Stay'

Today in Washington, D.C. - June 25, 2015
The House reconvened at 9 AM today.
Bills which may be considered:
H.R. 1735 - "To authorize appropriations for fiscal year 2016 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes, with the Senate amendment thereto."
H.R. 1295 - "To extend the African Growth and Opportunity Act, the Generalized System of Preferences, the preferential duty treatment program for Haiti, and for other purposes."
H.R. 2822 — "Making appropriations for the Department of the Interior, environment, and related agencies for the fiscal year ending September 30, 2016, and for other purposes."

Yesterday the House passed H.R. 2042 — "To allow for judicial review of any final rule addressing carbon dioxide emissions from existing fossil fuel-fired electric utility generating units before requiring compliance with such rule, and to allow States to protect households and businesses from significant adverse effects on electricity ratepayers or reliability."

At 10:51 AM today the House passed H.R. 1615 (423-0) — "To direct the Chief FOIA Officer of the Department of Homeland Security to make certain improvements in the implementation of section 552 of title 5, United States Code (commonly known as the Freedom of Information Act), and for other purposes."
At 12:47 PM today the House passed H.R. 2200 (420-2) (247-180) - To amend the Homeland Security Act of 2002 to establish chemical, biological, radiological, and nuclear intelligence and information sharing functions of the Office of Intelligence and Analysis of the Department of Homeland Security and to require dissemination of information analyzed by the Department to entities with responsibilities relating to homeland security, and for other purposes."

The Senate reconvened at 9:50 AM today and began a period of morning business. No votes are scheduled for today.

Yesterday, the Senate voted to pass all the remaining trade legislation. Senators voted 60-38 to concur in the House amendment to the Senate amendment to H.R. 2146, which sent Trade Promotion Authority (TPA) to the president’s desk for his signature.

The Senate then voted 76-22 to invoke cloture on the motion to concur in the House amendment to H.R. 1295, the bill containing the reauthorization of the Trade Adjustment Assistance (TAA) program and trade preferences for countries in Africa. Senators then agreed to the motion to concur by voice vote, sending that bill back to the House for approval.

Following those votes, the Senate agreed by voice vote to go to conference with the House on H.R. 644, the customs enforcement bill.

The Supreme Court this morning released a divided decisions.

In Texas Department Of Housing And Community Affairs et al. V. Inclusive Communities Project, Inc., et al, the Supreme Court ruled 5-4 that the 1968 Fair Housing Act doesn't solely ban overt discrimination in the housing market. The court said the law can also prohibit seemingly race-neutral policies that have the effect of disproportionately harming minorities and other protected groups, even if there is no overt evidence of bias behind them. A Washington Post article details this decision.

In King v. Burwell, which addressed the ability of the government to grant subsidies to customers of the federal Obamacare exchange, the Supreme Court ruled 6-3 that the subsidies should be available in states where consumers rely on the federal government exchange. The President Obama declared in a Rose Garden speech: “The Affordable Care Act is here to stay.”

Roberts was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Opposing the decision were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The Washington Post noted, "Scalia said Roberts, who also wrote the decision in 2012 that saved the Affordable Care Act from that challenge, has performed 'somersaults of statutory interpretation” to preserve the act: “We should start calling this law SCOTUScare.' The comment drew laughter as Scalia underlined his disagreement with the decision by reading part of his dissent from the bench.

The two cases, Scalia said, '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.'"

This morning on the Senate Floor, U.S. Senate Majority Leader Mitch McConnell addressed the Supreme Court ruling on King v. Burwell:“That we’re even discussing another of Obamacare’s self-inflicted brushes with the brink — again — is the latest indictment of a law that’s been a rolling disaster for the American people.

“Today’s ruling won’t change Obamacare’s multitude of broken promises, including the one that resulted in millions of Americans losing the coverage they had and wanted to keep. Today’s ruling won’t change Obamacare’s spectacular flops, from humiliating website debacles to the total collapse of exchanges in states run by the law’s loudest cheerleaders. Today’s ruling won’t change the skyrocketing costs in premiums, deductibles, and co-pays that have hit the middle class so hard over the last few years.

“The politicians who forced Obamacare on the American people now have a choice: crow about Obamacare’s latest wobble towards the edge, or work with us to address the ongoing negative impact of a 2,000-page law that continues to make life miserable for too many of the same people it purported to help.”
Former Arkansas governor and 2016 Republican presidential candidate Mike Huckabee made the following statement in response to the Supreme Court's ruling on King v. Burwell."Today's King v. Burwell decision, which protects and expands ObamaCare, is an out-of-control act of judicial tyranny. Our Founding Fathers didn't create a 'do-over' provision in our Constitution that allows unelected, Supreme Court justices the power to circumvent Congress and rewrite bad laws. The Supreme Court cannot legislate from the bench, ignore the Constitution, and pass a multi-trillion dollar 'fix' to ObamaCare simply because Congress misread what the states would actually do. The architects and authors of ObamaCare were intentional in the way they wrote the law. The courts have no constitutional authority to rescue Congress from creating bad law. The solution is for Congress to admit they screwed up, repeal the 'nightmare of Obamacare', and let states road-test real health care reforms.

"Everywhere I go, I talk to American families who keep getting punched in the gut with outrageous insurance premiums and infuriating hospital bills. ObamaCare was railroaded through Congress to 'solve' our healthcare problems, but five years later, American families are getting railroaded by runaway mandates, big government bureaucracy, and out-of-control healthcare costs. ObamaCare is a $2.2 trillion Washington disaster that raided billions from Medicare and did nothing to fix our broken system of 'sick care,' which rewards irresponsibility and penalizes commonsense. As President, I will protect Medicare, repeal ObamaCare, and pass real reform that will actually lower costs, while focusing on cures and prevention rather than intervention. The status quo is unfair, unaffordable, unsustainable, and completely un-American."
American Conservative Union Chairman Matt Schlapp sums up the majority feeling of conservatives regarding the judicial activism evidenced by the Supreme Court:“Today we are reminded of why it is destructive to have activists on the Supreme Court who are empowered by their hubris to act as Judge, Senator and King.

“What’s clear is that Professor Jonathan Gruber, President Barack Obama, Leader Harry Reid and former Speaker Nancy Pelosi thought they could force Republican governors to create their own state-based insurance exchanges. But because those 36 governors found Obamacare’s mandates so repellent, they spared their constituents and chose the unsubsidized Federal insurance exchanges instead.

“Chief Justice John Roberts now thinks it is his job to re-write the unambiguous language of the law to achieve a certain outcome: the radical Leftist dream of socialized medicine.

“Justice Roberts and the other concurring five justices have disgraced their office, sprayed graffiti on the Constitution, and set America on a path toward a constitutional crisis. In fact, two of these Justices blatantly deceived Congress during their confirmation hearings, and lied to the Presidents who appointed them. Justices Roberts and Anthony Kennedy promised President George W. Bush and President Ronald Reagan that they would follow the letter of the law.

“Under oath, Justice Roberts swore that he would not engage in judicial activism. He has betrayed his own integrity, the integrity of the court and the American people.

“Justices Roberts and Kennedy promised to only look at the statutory language drafted by Congress and the Constitutionality of that language. Instead they acted like corrupt county politicians, trying to achieve a political outcome as if they were cutting backroom deals in a smoke-filled room. The Republican-led Senate should haul these robed manipulators back to explain why they lied during their confirmation hearings. CEO’s of private corporations are not allowed to commit perjury before Congress. Why should the head of the Judiciary be held to a lower standard?

“Those of us who labored to get John Roberts confirmed are owed an apology. What is more tragic is we owe our fellow Americans an apology for believing him in the first place.

“There are three honest justices on the nation's highest court: Justices Samuel Alito, Clarence Thomas, and Antonin Scalia. The world should know that Roberts and Kennedy have not behaved as justices but instead as political hacks without term limits. They have brought shame to their office and defied the Presidents who placed their trust in them.”

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Tags: SCOTUS, Supreme Court, decisions, Obamacare,  judicial activism To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

King v. Burwell: “What is a State Exchange?”

by David Greenberg: The Supreme Court agreed to review the Fourth Circuit Court of Appeal decisions for King v. Burwell, 759 F.3d 358 (4th Cir. 2014). The Federal District Court for the Eastern District of Virgina ruled that the language in the Patient Protection and Affordable Care Act (ACA) unambiguously permitted the IRS to grant tax credits to individuals who purchased health insurance in federal exchanges (997 F.Supp.2d 415, 428). The Fourth Circuit disagreed with this interpretation, but determined that the IRS reasonably rooted their regulation in the Congressional intent of ACA.

Interpreting the ACA
All lawyers or law students should know that all statutory interpretation begins with the text of the statute. These same people should also know that the text of the statute rarely provides an adequate solution. The text of the ACA is over 900 pages long, so there are bound to be slight inconsistencies in language. Proofing such a large, complex document is next to impossible. Judges (more realistically, both parties’ lawyers) must piece together the meaning of those words so one provision does not cancel out another provision, or make a different provision meaningless. Simultaneously, the judge must attempt to honor the intent of the Congress insofar as Congress did not go beyond their authority. This is no easy task.

The ACA has a second important dynamic. It basically created, altered, or expanded tons of Federal agencies. This case, like every other ObamaCare case you have read about, is at the core a question of an agency’s action. There are two Supreme Court cases that determine how all courts must judge these actions: Chevron and Skidmore. In this case, Chevron governs.

Chevron set up a two-step process to determine if an agency’s regulation was legitimate. First, the Court must determine if Congress had a specific intent in enacting the language of a statute. If Congress’s intent is clear, then agencies must honor that intent. If the intent is ambiguous, then the court may proceed to the second step. The court must look at the regulation to determine if it reasonably accomplished Congress’s intent in establishing the law. In most cases, the court determines the agency acted reasonably.

So, at the heart of this case is two questions: Did Congress provide unambiguous intent in crafting these provisions in the ACA? If so, did the IRS violate its intent? If not, then did the regulation violate the intent of the ACA generally?

The Supreme Court’s Interpretation Dynamic
The Supreme Court honors its past decisions describing form, but individual justices often disagree at how these test should be applied. Like questions of Constitutional interpretation, the Supreme Court is divided sharply on statutory interpretation. Generally speaking, the Court can be divided into three general classes: purposivist, intentionalists, and textualists. These three general concepts differ in two questions: the amount of textual ambiguity required to look to secondary sources and which secondary sources are relevant.

Textualists generally require the highest amount of ambiguity or absolute absurdity to overcome the plain meaning of a statute. Even in these cases, textualists prefer to look within the Act for clarity before turning to secondary sources. In the event secondary sources are needed, they tend to look to general or technical dictionaries from the era of passage before legislative history. The Court has three textualists: Justices Scalia, Thomas, and Alito.

Intentionalists have a slightly lower threshold of ambiguity. If that threshold is met, the question changes slightly. They attempt to determine Congress’s intent to give the language additional meaning. THe theory is laws are passed to solve a social problem. If the Court can determine the Congress’s intended solution, then they can honor that intention. Intentionalists are willing to look at legislative history to determine intent when the statute is silent. The Court has two intentionalists: Chief Justice Roberts and Justice Kennedy.

Purposevists have an even lower threshold of ambiguity. The standard is so low that if a statute is before the Supreme Court, it will meet the threshold. Like intentionalists, the question changes slightly after the threshold is met. Purposevists want to know the purpose, or ultimate goal, of the statute. The interpretation that best reaches that end is the best possible interpretation. The Court has four purposivists: Justices Ginsburg, Breyer, Sotomayor, and Kagan.

Applying Chevron to King
Applying Chevron to King v. Burwell requires the Court to first look at the statutory language. The specific section is in 26 U.S.C. 36B (b)(2). It reads as follows:The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of— the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or the excess (if any) of— the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.Making things a little bit less ambiguous, Section 1311 of the Patient Protection Act (42 U.S.C § 18031) only describes state run exchanges, while section 1321 (42 U.S.C. § 18041) describes federally run exchanges. Likewise, Congress understands the difference between State and Federal programs, and it would be a hard thing to believe that Congress meant “Federal and State” when it used the word “State” in this context. Textualist interpretation likely will end on this distinction. The statue is unambiguous, limiting the authority of the IRS to provide this tax credit when health insurance is purchased in state operated exchanges.

None of the Court of Appeals decisions have come to this final conclusion (Halbig is being review en banc in the D.C. Circuit). As such, it is never this simple. Section 1321 provides,If—a State is not an electing State under subsection (b); or the Secretary determines, on or before January 1, 2013, that an electing State—will not have any required Exchange operational by January 1, 2014; or has not taken the actions the Secretary determines necessary to implement—the other requirements set forth in the standards under subsection (a); or the requirements set forth in subtitles A and C and the amendments made by such subtitles; the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.Courts have interpreted this provision to mean that Federal exchanges that are set up under these circumstances are functionally the same exchanges set up under section 1311. For most of the Supreme Court, this fact may be enough to view the language is ambiguous. Because legislative history is essentially non-existent, courts have been unable to determine which is these interpretations Congress intended.

Because of this, courts have entered the second stage of Chevron. This opens the door to further information. Court’s first attempt to determine the ill targeted by the ACA. Chief Justice Roberts provided the answer in National Federation of Independent Business v. Sebelius, “The Act aims to increase the number of Americans covered by health insurance and decrease the cost of health care.” If this is the ill, does the IRS expansive interpretation reasonably further this goal? That is plainly yes.

The big question for commentators and Fantasy Supreme Court players is how the Court’s intentionalists will handle the lack of legislative history. Chief Justice Roberts and Justice Kennedy understanding of the Act’s constitutionality differ greatly, but the constitutionality of an Act and the interpretation of that Act are completely different questions.
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David Greenberg is a Juris Doctor candidate at Mercer University in Macon, Georgia. He has worked for several conservative think-tanks and grassroots organizations researching government studies, energy policy, and constitutional law. He shared this article on The College Conservative.

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Tags: Supreme Court, King v. Burwell, What is a State Exchange, Health Care Excahnge, state exchange, Obamacare, Affordable Care Act To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

9 Quotes From Justice Scalia’s Scathing Dissent in King v. Burwell

Justice Antonin Scalia

by Tiffany Bates & Elizabeth Slattery: Justice Antonin Scalia is known for his sharp wit and even sharper pen. He pulled no punches in his dissent today from the Supreme Court’s decision in King v. Burwell allowing the Obama administration to allow Obamacare subsidies to flow through the federal exchange.

Here are nine highlights:

1. “We should start calling this law SCOTUScare … [T]his Court’s two decisions on the Act will surely be remembered through the years … 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.”

2. “This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious — so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

3. “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

4. “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

5. “The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that ‘it is also possible that the phrase refers to all Exchanges—both State and Federal. (Impossible possibility, thy name is an opinion on the Affordable Care Act!)’”

6. “Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as “inartful drafting.’ This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”

7. “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. They made Congress, not this Court, responsible for both making laws and mending them.”

8. “More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. ‘If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’ In the meantime, this Court ‘has no roving license … to disregard clear language simply on the view that … Congress ‘must have intended’ something broader.”

9. “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges.”
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Tiffany Bates (@TiffanyHBates) writes about the Supreme Court and constitutional law as a legal research associate in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Elizabeth Slattery (@EHSlattery) writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

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Tags: King v. Burwell, Justice Antonin Scalia, quotes, scathing dissent To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!

Liberals mocking Obamacare Case Have A Big Problem

by Phil Kerpen, Contributing Author: There is a big problem with the prevailing liberal narrative that the phrase describing subsidy eligibility in Obamacare, “established by the state,” could not possibly mean what it says. The problem is named Jonathan Gruber.

For years Gruber understood Obamacare precisely the same way the challengers in King v. Burwell do.

When the bill passed in March 2010, Gruber said: “There's a lot of responsibilities on the states to set up these exchanges, like we did in Massachusetts, to regulate them and run them.”

By October 2011, Gruber was starting to get concerned that states would be a problem: “The most certain threat is states not working hard enough to implement this bill ... literally setting up a functioning exchange.”

By January 10, 2012, he was playing hardball. “Will people understand that gee, if your governor doesn’t set up an exchange you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens?”

Gruber was even more emphatic eight days later, when he said: “If you're a state and you don’t set up an exchange that means your citizens don't get their tax credits… I hope that that's a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

On March 1, 2013, months into Obama’s second term, Gruber still believed states could undermine Obamacare through inaction. He said: “The last group is the one that’s the most worrisome to me. They're the states that are those stick-it-to-the-man Conservative states that are trying to make political hay out of doing nothing.”

When the Obama administration, the IRS, and their allies decided to hold hands and act indignant that anyone might think the words “established by the state” actually mean what they say, Jonathan Gruber became a profound problem. So they rewrote the history of the bill to demote Gruber from its celebrated chief architect to just some guy.

Gruber got with the program after his contempt for the “stupidity of the American voter” became infamous, even going up to Congress to downplay his involvement in a bill about which he told his MIT students he helped write.

“I was not the ‘architect’ of President Obama’s health care plan. I ran microsimulation models,” he told Congress in sworn testimony on December 9, 2014.

But newly released documents show that he did far more than just run the models. Indeed, the quote he provided for his $392,000 no-bid contract expressly stated that he was hired to do more that run the numbers: “I will provide both policy consulting and microsimulation modeling...I will play two, integrated, roles.”

Clint Druk, the official who approved Gruber's contract, noted it was “of key political importance” because “there is appreciable pressure to get him working immediately.” Druk designated the no-bid “unusual or compelling” to “get the health reform proposals going.”

When Congress investigated the contract in 2010 – because Gruber was caught representing himself as an independent expert while under contract with HHS – colleague Patrick Joy told Druk he was “lucky the Dems are in charge across the board, may stop some scrutiny.”

The contract documents are part of a FOIA first reported by Chuck Ross at the Daily Caller, which also includes hundreds of pages of heavily-redacted email conversations between Gruber and the key White House Obamacare team. It is clear that he played a central role developing the policy and legislative language, not just running the numbers.

So Jonathan Gruber is a very big problem for those who, like President Obama, posture that King v. Burwell “should be an easy case. Frankly, it probably shouldn’t even have been taken up.”

One of Obamacare’s key creators had no trouble understanding what “established by the state” meant until the Obama administration decided to overrule the states. Now liberals want to pretend he doesn’t exist. I wonder why?
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Phil Kerpen is president of American Commitment. Follow him at (@kerpen) and on Facebook. He is a contributing author at the ARRA News Service.

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4 Key Upcoming Supreme Court Cases Involving Spider-Man, the Confederate Flag and Obamacare

by Elizabeth Slattery: Today the Supreme Court will be back in full swing, hearing oral arguments in a number of important cases. In addition to a case dealing with discrimination against Muslims and a few involving freedom of speech, here are other noteworthy cases coming up.

1. Walker v. Texas Division, Sons of Confederate Veterans: Do messages on license plates convey speech of the government or of individuals? In general, the government may not discriminate against certain viewpoints by preferring some speech over others. But when the government itself is speaking, it may choose to endorse certain views and speak certain messages. For example, if the government issues pamphlets that say “Fight Terrorism,” it does not need to offer similar pamphlets endorsing terrorism. Texas issues a standard license plate but authorizes some specialty plates for an additional fee. The Sons of Confederate Veterans sought permission from the state to authorize a specialty license plate featuring the group’s logo and a Confederate flag. Texas denied the group authorization after receiving hundreds of public comments opposing the license plate. At issue before the Supreme Court is whether these specialty license plates are private speech—requiring viewpoint neutrality—or government speech. The outcome will likely decide a related case involving North Carolina’s “Choose Life” license plates.

2. Utility Air Regulatory Group v. EPA: Congress authorizes the Environmental Protection Agency to regulate public health risks from hazardous air pollutants emitted by electric utilities when “appropriate and necessary.” Following this mandate, the EPA adopted a rule regulating these emissions that costs $9.6 billion per year (according to EPA’s analysis), while only benefitting society $4-6 million per year. As the Utility Air Regulatory Group explains, that’s a “$1 ‘benefit’ for every $1,500 spent.” The group sued the EPA claiming that the agency may not ignore costs when determining the “appropriateness” of regulations. Over the dissent of Judge Brett Kavanaugh, who wrote that cost consideration is “a central component of ordinary regulatory analysis,” the D.C. Circuit deferred to the EPA, stating that appropriateness is “open-ended” and “ambiguous.” The Supreme Court will decide if that decision was correct.

3. Kimble v. Marvel Enterprises: In 1991, Stephen Kimble invented and obtained a patent for a toy that let children shoot foam string like Spider-Man. Marvel came out with a similar toy (the Web Blaster) soon after, and Marvel and Kimble entered into an agreement providing future royalties to Kimble. In 2008, the parties disputed the royalty calculations, and Kimble sued Marvel for breaching their agreement. But Marvel claims that under the 1964 Supreme Court decision Brulotte v. Thys Co, it does not owe future royalties to Kimble since his patent expired in 2010. In Brulotte, the Supreme Court held that agreements providing royalties to patent holders after the patent expires are per se unlawful, but this decision has been criticized by many for stifling innovation. The Supreme Court will decide who gets to string Spider-Man’s web.

4. King v. Burwell: In Lewis Carroll’s “Through the Looking-Glass,” Humpty Dumpty asserts, “When I use a word…it means just what I choose it to mean.” In the latest challenge to Obamacare, the government takes a page from Humpty Dumpty’s view on words. Enacted as part of Obamacare, Section 36B of the Internal Revenue Code authorizes tax credits for health insurance purchased through an exchange “established by the state.” When 36 states chose not to establish their own exchanges, the federal government created federally run exchanges in those states, and the IRS extended tax credits for insurance purchased through those exchanges. In King v. Burwell, the Fourth Circuit decided that the IRS’s twisting of “established by the state” to include the exchanges established by the federal government was reasonable, but the D.C. Circuit came to the opposite conclusion, stating that the IRS regulation violates the plain language of Section 36B. The Supreme Court will now have the opportunity, just like Humpty Dumpty, to decide what Congress meant when it said “established by the state.”

The constitutionality of traditional marriage laws may also come before the Court this spring. While the Court declined to review a number of cases last fall, it is increasingly likely that the justices will grant review in one of the more recent petitions filed with the Court challenging laws in Kentucky, Michigan, Ohio and Tennessee.

While the Court does not typically announce the reason for not agreeing to hear a case, it is likely the Court declined to review prior cases last fall because, at that time, every appellate court had ruled that these laws violate the U.S. Constitution. But in November, the Midwest-based Sixth Circuit upheld traditional marriage laws in several states. This disagreement (known as a “circuit split”) increases the chances that the Court will decide to grant review in one of these cases this term. You can read about many of the other big cases of this term here.
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Elizabeth Slattery (@EHSlattery) is a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

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Don’t Ignore the King Winners

by Phil Kerpen, Contributing Author: As we await a decision in King v. Burwell, public focus is shifting from the legal arguments to the practical and political consequences if a majority on the Supreme Court orders the Obama administration to give meaning to the words “established by the state.” If the Court does, there will be three major immediate impacts in the states that declined to establish exchanges:

1. Millions will be exposed to the full cost of Obamacare’s sky-high premiums, with taxpayers no longer picking up the tab via subsidies.

2. Millions will have the chance to regain lost hours and income at work, because the employer mandate and its infamous 30-hour rule will no longer be in effect.

3. Millions will be exempt from Obamacare’s individual mandate, the most hated part of the law.

We know President Obama’s solution: a “fix” that saves subsidies for the people in the first group by revictimizing people in the other two.

Unfortunately, he is being abetted by the media’s reporting exclusively on people in the first group, the King losers. The government has tallied 6.4 million people currently receiving subsidies through Healthcare.gov, and the figure has been widely reported. Some stories note that the subsidies cost taxpayers a cool $20 billion per year, but there is no further attempt at balance. It’s as if the two groups of King winners don’t exist. Yet if it were not for the King winners, the case could never have existed in the first place.

To have standing to bring a lawsuit, a plaintiff needs to show a specific, concrete injury. In King and related cases, the plaintiffs are individuals and employers who are subject to mandates only because of the illegal subsidies. That’s because the way the employer mandate is written, it applies only to companies with subsidy-eligible employees. No subsidy, no mandate, no 30-hour workweek. And the way the individual mandate is written, anyone who would have to spend more than 8 percent of his or her income on Obamacare premiums is exempt. Without subsidies shifting those costs to taxpayers, and with premiums skyrocketing, that will include almost everybody.

So how many King winners are there, and who are they?

According to an analysis by Michael Cannon of the Cato Institute, a victory for the plaintiffs would free approximately 57 million people working for 250,000 employers from the employer mandate. Most of those, however, would be only subtle winners, because they had employer-sponsored insurance before and after Obamacare. What they would win is lower cost and perhaps more choices regarding health plans.

The really big winners if the employer mandate is struck down in federal-exchange states will be the victims of the mandate’s 30-hour rule, which Jimmy Hoffa Jr. and other union leaders famously said “destroy[s] the foundation of the 40 hour work week that is the backbone of the American middle class.”

A study by former Congressional Budget Office director Douglas Holtz-Eakin and his colleague Brittany La Couture at the American Action Forum found that, in states where King would undo the employer mandate, 3.3 million workers want full-time jobs but are stuck working part-time. They could all stand to benefit from the removal of the onerous employer mandate. The study also found that 1.27 million people not currently working at all would be added to the labor force. The entire economy, in other words, would be a big-time winner.

The media doesn’t tell these stories, but they aren’t hard to find. We got lots of them just by asking the e-mail list of our little organization, American Commitment. People like:

Jessica A. in Woodstock, Ga.: “My husband’s hours were cut from 40 to less than 30 because of Obamacare. He had to find a second part-time job to supplement our income. We thank the Good Lord that he was able to find that second job, but we both went through a lot of stress not knowing what was going to happen before he was hired by them. And even though we are thankful for the extra work, his hours are not as good as they were before and the children and I barely see him anymore.”

Charlie L. in Greensboro, N.C.: “I used to teach six or seven classes at a community college as an adjunct instructor for full-time equivalent. Now I’m limited to only four. That’s a 40 percent reduction in income!”

Tom S. in Salt Lake City: “I am a paraprofessional working with special-education students in a high school. I help coach football and basketball there as well. Before Obamacare I was able to work over 30 hours per week and I received a stipend for my coaching. Now my hours are limited to 28 hours, and my coaching, which I love to do, is now considered to be on a voluntary basis. This has caused me to work another part-time job during the summer to make ends meet. This is an outrage that people like myself have been forced into this position and that our plight is completely ignored!”

And we’ve heard story after story from parents whose teenage and young-adult children are simply unable to find full-time work.

Thomas W. in Cincinnati: “My three teenage working sons are now under 30 hours. This hurts us parents to cover more of their costly needs.”

Jim G. in Tucson: “I have three children ages 22, 24, and 26 who cannot find full-time work due to this disaster.”

Sherrie W. in Conroe, Texas, says her son “has to work two jobs in retail to pay loans.” Why? The IRS rule: “He could only get 27 hours because of it.”

If King wins, that means the IRS applied the employer mandate and the 30-hour rule to all of these individuals and families illegally.

The other group of King winners is the 11.1 million people who will be freed from the individual mandate and an average tax penalty of $1,200, according to the American Action Forum study. That’s nearly twice as many people as stand to lose subsidies. People who already paid the penalty tax would be due immediate refunds from the IRS, and millions more would not be punished in coming years just for choosing not to buy into Obamacare.

Some people overlap both groups:

Stephanie B. in St. Petersburg, Fla.: “For two years I have been scheduled for 28 hours per week,” she writes. “I never did purchase any health care coverage. Even with the government subsidy, I would have to pay $244 per month! I attempted to have the penalty for not purchasing Obamacare waived. I was refused. So my income has been cut by 20 percent, I have no health care coverage, and I had to pay the federal government a penalty.”

None of this is to say that Congress should react to a King victory by declaring that the winners outnumber the losers and therefore doing nothing. The losers are real too, and 6.4 million people should not be punished for being enticed into buying an expensive product by the false promise that taxpayers would pick up the tab. Many of the people would just like to get back their old, pre-Obamacare plans that they could afford without subsidies, which would require Congress to act.

But whatever Congress does to help the King losers, they should not even consider revictimizing the King winners with a “fix” that reimposes mandates found illegal by the Supreme Court.
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Phil Kerpen is president of American Commitment. Follow him at (@kerpen) and on Facebook. He is a contributing author at the ARRA News Service. He also shared this article on National Review

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Oklahoma Wins Victory Over IRS Obamacare Rule

by Phil Kerpen, Contributing Author: Judge Ronald A. White, district judge in the Eastern District of Oklahoma, issued a sharp rebuke to the Obama administration today over the same regulation purporting to authorize federal subsidies through federal exchanges on which appeals court panels recently split in the DC and Fourth Circuits.

At issue was whether the words “established by the state” in the section of Obamacare that authorizes exchange subsidies means what it says, or whether the Federal Secretary of Health and Human Services can be a "state," as the IRS and the Obama administration have claimed, in order to allow subsidies to flow in states that chose not to cooperate.

The State of Okahoma, led by Attorney General Scott Pruitt, filed suit to protect the state’s statutory right to opt out of Obamacare subsidies and the employer taxes that come with them.

Judge White ruled:

The animating principles of this court’s decision have been articulated by the Tenth Circuit: “[C]ourts, out of respect for their limited role in tripartite government, should not try to rewrite legislative compromises to create a more coherent, more rational statute. A statute is not ‘absurd’ if it could reflect the sort of compromise that attends legislative endeavor.” Robbins v. Chronister, 435 F.3d 1238, 1243 (10th Cir.2006).24 “An agency’s rulemaking power is not ‘the power to make law,’ it is only the ‘power to adopt regulations to carry into effect the will of Congress as expressed by the statute.’” Sundance Associates, 139 F3d at 808 (citation omitted) “In reviewing statutes, courts do not assume the language is imprecise ... Rather, we assume that in drafting legislation, Congress says what it means.” Id at 809.

The court holds that the IRS Rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 U.S.C. §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U.S.C. §706(2)(C), or otherwise is an invalid implementation of the ACA, and is hereby vacated. The court’s order of vacatur is stayed, however, pending resolution of any appeal from this order.

In other words, he rejected the government’s argument that the federal Secretary of Health and Human Services can be a “state” when establishing an exchange.

This decision agrees with a recent panel of the DC Circuit Court of Appeals in Halbig v. Burwell and disagrees with a conflicting opinion from the Fourth Circuit Court of Appeals in King v. Burwell. The federal government will appeal today’s decision to the Tenth Circuit Court of Appeals.

There is a pending petition for certiorari before the Supreme Court in the King case. Today’s decision makes clear that this issue can only be resolved by that court.

For more on the issue, read our previous anlaysis here and here

Here is today's full decision from Judge White: Pruitt v. Burwell District Court Order
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Phil Kerpen is president of American Commitment. He is on Twitter  and on Facebook and a a contributing author for the ARRA News Service.

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Dems’ Recusal Demands Are ‘Another Totally Invented Standard’

Justice Kagan Ruled In Major Obamacare Cases After Serving In The Obama Administration, Justices Ginsburg And Breyer Ruled In Landmark Cases Where President Clinton Was A Party, And All Four Justices Appointed By Those Presidents Participated In Election Year Cases When That President Stood For Re-Election

SENATE MAJORITY LEADER MITCH McCONNELL (R-KY):  “Here’s another one of the made-up attacks: Democrats are demanding that Judge Barrett commit in advance to recuse herself from entire categories of cases, for no reason. This is another totally invented standard. Nobody has ever suggested that Supreme Court Justices should categorically sit on the sidelines until the President who nominated them has left office. Justices Ginsburg and Breyer were confirmed during President Clinton’s first term. Justices Sotomayor an d Kagan were confirmed during President Obama’s first term. All four of these Justices went on to participate in election-related proceedings while the President who’d nominated them was on the ballot. And Justices Breyer and Ginsburg participated actively in Clinton v. Jones and other matters connected to President Clinton’s eventual impeachment. In fact, they urged and attempted to get the Supreme Court even more involved. (Sen. McConnell, Remarks, 10/01/2020)

• SEN. McCONNELL: "This is just a sideshow. If Judge Barrett is confirmed, she will swear an oath. She will have a lifetime appointment. Nobody serious is suggesting she lacks any bit of the integrity which everyone trusted Justices Ginsburg, Breyer, Sotomayor, Kagan, and countless others to exercise. In fact, her integrity and independence are precisely what Judge Barrett’s peers across the political spectrum go out of their way to applaud. Judge Barrett has no obligation to make any of the bizarre pre-judgments that our Democratic colleagues are demanding.” (Sen. McConnell, Remarks, 10/01/2020)

It Is Widely Accepted That Justices Participate In Cases Important, Even Personally, To The Presidents Who Nominated Them’

“It is widely accepted that justices participate in cases important, even personally, to the presidents who nominated them. Three of President Richard M. Nixon’s nominees joined the unanimous court ruling against him in the decision requiring him to turn over White House tapes in a criminal investigation…. Likewise, Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances.” (“As Trump Cases Arrive, Supreme Court’s Desire To Be Seen As Neutral Arbiter Will Be Tested,” The Washington Post, 11/26/2019)

“[Justice Stephen] Breyer said it has to be a very high bar for a justice to step back. ‘If you’re in a court of appeals and you’re uncertain, you know, it’s a sort of borderline, take yourself out of it,’ Breyer said. ‘Because there are a lot of other judges who can step in.’ But on the Supreme Court, ‘If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.’” (“Exclusive: Justice Stephen Breyer On Politics And The Rule Of Law,” Axios, 3/22/2020)

Both Justice Sonia Sotomayor, Appointed By President Obama In 2009 And Justice Elena Kagan, Appointed By President Obama In 2010, Participated In Cases Involving The 2012 Presidential Election
Early voting in Ohio: Before the election, the Democratic National Committee and Obama for America obtained an injunction that prevented the State of Ohio from imposing certain limits on early in-person voting. See Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012). Ohio submitted to Justice Kagan an application to stay the injunction, which Justice Kagan referred to the full Court. On October 16, 2012, the Supreme Court denied the application, ruling in favor of the Democratic National Committee and Obama for America. Both Justices Sotomayor and Kagan participated. See Husted v. Obama for Am., 568 U.S. 970 (2012).

Campaign contributions in Montana: After several Republican-affiliated organizations obtained an injunction that prevented Montana from enforcing its campaign contribution limits during the run-up to the election, the Ninth Circuit stayed the injunction, fearing that it could throw the “imminent” election into “chaos.” Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012). The Republican-affiliated organizations filed an application to vacate the stay, but on October 23, 2012, the Supreme Court denied the application. Both Justices Sotomayor and Kagan participated. See Lair v. Bullock, 568 U.S. 974 (2012).

Voter registration in Texas: In late September 2012, the Ninth Circuit stayed an injunction that had prevented Texas from enforcing various restrictions on voter registration conducted by third parties. See Voting for Am., Inc. v. Andrade, 488 F. App’x 890 (5th Cir. 2012). The Supreme Court denied an application to vacate the stay on September 25, 2012. Both Justices Sotomayor and Kagan participated, and Justice Sotomayor stated that she would have granted the application in part. See Voting for Am., Inc. v. Andrade, 567 U.S. 967 (2012)

Ballot access in Michigan: Shortly before the election, the Sixth Circuit refused to grant emergency relief that would have ordered the State of Michigan to place Gary Johnson, the Libertarian candidate for President, on the Michigan ballot for the election. See generally Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 931 (6th Cir. 2013). Johnson and the Libertarian Party submitted to Justice Kagan an application for similar emergency relief, which was opposed by the Republican Party of Michigan. Justice Kagan referred the application to the full Court, which denied the application on September 19, 2012. Both Justices Sotomayor and Kagan participated. See Libertarian Party of Mich. v. Johnson, 567 U.S. 966 (2012).

Proof of citizenship in Arizona: In the summer before the election, the en banc Ninth Circuit rejected an Arizona policy that imposed heightened requirements for establishing the proof of citizenship necessary to vote. See Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). The Supreme Court denied Arizona’s application to stay the decision of the Ninth Circuit. Both Justices Sotomayor and Kagan participated. See Arizona v. Abeytia, 567 U.S. 947 (2012)

Both Justice Ruth Bader Ginsburg, Appointed In 1993 By President Clinton, And Justice Stephen Breyer, Appointed By President Clinton In 1994, Participated In A Case Involving The 1996 Presidential Election
Election judges in Texas: In October 1996, Dallas County changed its method for appointing the election judges that would supervise polling precincts during the upcoming election. The new method was challenged for allegedly violating the Voting Rights Act, but a 3-judge panel rejected the challenge. See generally Foreman v. Dallas Cty., 990 F. Supp. 505, 507–508 (N.D. Tex. 1998). The challengers filed an application for an injunction and stay, but on October 29, 1996, the Supreme Court denied the application. Both Justices Ginsburg and Breyer participated. Foreman v. Dallas Cty., 519 U.S. 957 (1996)

Justices Ruth Bader Ginsburg And Stephen Breyer Took Part In Cases To Which President Bill Clinton Was A Party
“Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances.” (“As Trump Cases Arrive, Supreme Court’s Desire To Be Seen As Neutral Arbiter Will Be Tested,” The Washington Post, 11/26/2019)

Justices Ruth Bader Ginsburg and Stephen Breyer both participated in Clinton v. Jones in 1997.

“Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances.” ((“Clinton v. Jones,” Oyez.org, Accessed 10/01/2020)

In a 1998 case, Office Of The President v. Office Of Independent Counsel, the Supreme Court declined to take the case, but Justices Breyer and Ginsburg both dissented, arguing the Court should have heard the case. (“OFFICE OF THE PRESIDENT v. OFFICE OF INDEPENDENT COUNSEL,” Cornell Law School Legal Information Institute, 11/09/1998)

In another 1998 case that the Supreme Court declined to hear, Robert Rubin, Secretary Of Treasury, et al. v. United States, Justices Ginsburg and Breyer both dissented, arguing the Court should have heard the case. (“ROBERT RUBIN, SECRETARY OF TREASURY, et al. v.UNITED STATES, through the independent counsel,” Cornell Law School Legal Information Institute, 11/09/1998)

JUSTICE GINSBURG: “I agree with Justice Breyer that this Court, and not a Court of Appeals, ought to be the definitive judicial arbiter in this case. The matter is grave …” (“ROBERT RUBIN, SECRETARY OF TREASURY, et al. v.UNITED STATES, through the independent counsel,” Cornell Law School Legal Information Institute, 11/09/1998)

In 1997, Justices Ginsburg and Breyer joined the other justices in declining to take up a different Office of the President v. Office of Indep. Counsel case. 512 U.S. 1105 (1997)

Justice Elena Kagan Served As Solicitor General For The Obama Administration As That Office Began To Prepare For Litigation Involving The Affordable Care Act, Yet Kagan Participated In The Cases Involving That Law
President Obama nominated Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.” (“Obama Picks Kagan As Justice Nominee,” The New York Times, 5/09/2020)

“When the Supreme Court announced Monday that it will review President Barack Obama’s health care reform law this term, Justice Elena Kagan gave no indication that she will recuse herself from the cases the court plans to hear.” (“No Sign Elena Kagan, Clarence Thomas Will Recuse On Health Care Law,” Politico, 11/14/2011)

“The charges against Kagan arise from her work as solicitor general, the government’s top appellate lawyer. If she were still in the job, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional. Kagan was notified by the White House in March 2010 — just before the law was passed — that she was under consideration to be named to the high court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

• “Federal law requires judges, including those on the Supreme Court, to disqualify themselves when their ‘impartiality might be reasonably questioned,’ as well as for specific reasons such as a financial interest or the involvement of a family member in the litigation. In addition, it calls for recusal when the judge has served in the government and ‘participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.’” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

“But … e-mails released… under public records requests raise questions about the White House’s contention she had been ‘walled off’ from discussions about the health-care act. One e-mail from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

“Another e-mail seemed to indicate enthusiasm for the bill. In response to a message at the time of the vote from Harvard law professor Laurence H. Tribe, then working at the Justice Department, Kagan wrote: ‘I hear they have the votes, Larry!! Simply amazing.’” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

ELENA KAGAN: “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

Justice Elena Kagan subsequently participated in two major Supreme Court cases on the Affordable Care Act, NFIB v. Sebelius in 2012 and King v. Burwell in 2015. ("National Federation of Independent Business v. Sebelius,” Oyez.org, Accessed 10/01/2020; “King v. Burwell,” Oyez.org, Accessed 10/01/2020)

Further, Justices Named by Presidents Obama And Clinton Participated In Hundreds Of Cases In Which Presidents Clinton Or Obama Were A Named Party

Justice Ginsburg participated in at least 79 cases in which President Clinton was a named party.

Justice Breyer participated in at least 74 cases in which President Clinton was a named party.

Justice Sotomayor participated in at least 102 cases in which President Obama was a named party.

Justice Kagan participated in at least 91 cases in which President Obama was a named party.
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SENATE REPUBLICAN COMMUNICATIONS CENTER

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