“Rob Weiner is at it again over at Balkinization. This time alleging he’s found some smoking gun to prove that the Halbig litigation is “anti-democratic” and rests on a flawed legal theory. As with his posts on the D.C. Circuit’s en banc procedures, Weiner’s diatribe is long on bluster, but short on meaningful claims. And, as before, he says some things that are false, irrelevant, or both.
Weiner starts with the supposed discovery of a video that shows the theory underlying Halbig was illegitimate from the start. The video is of a December 2010 conference at the American Enterprise Institute at which Vanderbilt law professor James Blumstein and health law attorney Tom Christina discussed pending and potential legal challenges to the PPACA. It was this presentation – though the slides posted on the AEI website, not the video as Weiner claims – that first alerted me to the fact Section 1401 of the PPACA only authorizes tax credits in health insurance exchanges “established by the State,” and not in federal exchanges. It was also where Michael Greve urged listeners to find a way to upend the PPACA. This, in Weiner’s telling, shows the unholy origins of the Halbig litigation.”
“The White House has rejected a request to publicly disclose documents relating to the kinds of security software and computer systems behind the federal health care exchange website on the grounds that the information could “potentially” be used by hackers.
The Centers for Medicare and Medicaid Services denied a Freedom of Information Act request made late last year by the Associated Press amid concerns that Republicans raised about the security of the website, which had technical glitches that prevented millions of people from signing up for insurance under ObamaCare.
In denying access to the documents, including what’s known as a site security plan, Medicare told the AP that disclosing them could violate health-privacy laws because it might give hackers enough information to break into the service.
“We concluded that releasing this information would potentially cause an unwarranted risk to consumers’ private information,” CMS spokesman Aaron Albright said in a statement.
The AP is asking the government to reconsider. Obama instructed federal agencies in 2009 to not keep information confidential “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” Yet the government, in its denial of the AP request, speculates that disclosing the records could possibly, but not assuredly or even probably, give hackers the keys they need to intrude.”
“Obamacare challengers in the Halbig case have asked the D.C. Circuit Court of Appeals not to review a three-judge panel’s ruling against federal exchange subsidies, instead calling for “final resolution by the Supreme Court.”
The backstory: one month ago a divided three-judge panel prohibited Obamacare subsidies for residents buying from the federal exchange. The Obama administration asked the full D.C. Circuit bench to rehear the case, which is reserved for matters of exceptional importance.
The challengers don’t want that, because if they lose at the D.C. Circuit it would make the Supreme Court less likely to take the case.
“There is no doubt that this case is of great national importance. Not due to the legal principles at stake—this is a straightforward statutory construction case under well-established principles—but rather due to its policy implications for ongoing implementation of the Affordable Care Act (‘ACA’). Those implications, however, are precisely why rehearing would not be appropriate here, as Judges of this Court have recognized in many analogous cases,” the plaintiffs wrote in the brief filed Monday.
The Obama administration has an advantage in an en banc — or full bench — ruling: it would feature eight Democratic-appointed judges and five Republican-appointed judges. Now that the 4th Circuit Court of Appeals has ruled in favor of the federal subsidies, the only way the challengers can win is at the Supreme Court. The plaintiffs at the 4th Circuit have already asked the justices to take the case, which the Halbig plaintiffs pointed out.”
“The deadly Ebola outbreak spreading through Africa is so extreme, it is driving health officials to do something that they would instinctively resist in normal circumstances: Subject patients to unproven experimental drugs.
The drugs are risky. Some have not even been tested on humans. Even so, a World Health Organization ethics committee just declared such use ethical, and its reasoning is hard to dispute, at least for patients who would otherwise die. Some chance is better than none, even with unknown side effects.
Too bad American patients suffering from terminal illnesses have so much trouble getting the same chance.
The process for getting experimental drugs is so daunting that fewer than 1,000 people sought and got federal approval to take such drugs last year.
Food and Drug Administration rules require patients to clear a series of hurdles. First, they and their doctors must find a company to provide its drug. Many drug makers — worried that a patient’s death will spur a lawsuit or harm their chances for final FDA approval — refuse.”
“Health policy hashed out in Washington is usually discussed in terms of billions of dollars or percentage of market share. But, more often than other areas of policy, it can also lead to a focus on whether it will directly cause unnecessary suffering or even death for individuals.
Pointing to the deeply personal implications of health policy is not unfamiliar. Consider Sarah Palin’s accusation that Obamacare would create “death panels,” or recent debates over FDA approval of Avastin, a cancer drug.
The argument that the government shouldn’t regulate the behavior of a dying patient has sprouted up once again in 2014, and may be setting the stage for a showdown between the states on one side, and the federal government and Congress on the other.
In May, Colorado Gov. John Hickenlooper (D) signed into law a controversial measure that allows terminally ill patients to obtain experimental medications before they’ve been approved by the Food and Drug Administration.
Those who favor the law have a ready-made big government bogeyman in the Food and Drug Administration, as well as some Hollywood glitz in the form of Oscar-winning picture “Dallas Buyers Club,” in which Matthew McConaughey is an AIDS crusader smuggling non-sanctioned medications to patients in the early days of the virus.
They also have a simple and emotionally compelling argument.
“The use of available investigational drugs, biological products, and devices is a decision that should be made by the patient with a terminal disease in consultation with his or her physician, not a decision to be made by the government,” reads the proposed statutory language in the “Right to Try Act” developed by the conservative Goldwater Institute.”
“The latest somersaults and contortions over Obamacare last month spread from courtrooms to the blogosphere, with another round of regulatory “adjustments” not far away. The common principle followed by the health law’s most energetic advocates appears to be the whatever-it-takes motto of the late Oakland Raiders owner Al Davis, “Just win, baby!”
A pair of federal appellate court decisions on July 21 (Halbig v. Burwell and King v Burwell) sent Obamacare backers cycling through at least the first three stages of grief (anger, denial, and bargaining) over the potential loss of tax credit subsidies for states with federal-run health exchanges, along with the likelihood of further unraveling of the health law’s interrelated scheme of coverage mandates and tighter insurance regulation. A 2-1 majority ruling in Halbig delivered the latest blow to the Affordable Care Act, by deciding to vacate a 2012 Internal Revenue Service rule that attempted to authorize such subsidies.
The loudest voices among the flock of pro-ACA court watchers had previously declared such a judicial decision all but “inconceivable.” For example, Henry Aaron of the Brookings Institution termed these legal challenges to Obamacare as absurd, crazy, and wacky in an April 1, 2014 New England Journal of Medicine article. Jonathan Gruber of MIT and a key architect of both Massachusetts-based Romneycare and its cloned twin Obamacare called the tax credit theory behind the cases “screwy,” “nutty,” “stupid,” “unprecedented,” and “desperate” (but that depends on which version of Gruber one chooses to sample).
Tim Jost of the Washington and Lee University School of Law and a frequent blogger on this issue at Health Affairs, continues to be often wrong, but never in doubt—at least until later events require some modest repositioning. In July 2012, he flatly asserted that “these claims are simply false” regarding contentions that final IRS rules to enable premium tax credits through federal exchanges are unauthorized by law. Jost further opined that the only viable challengers with legal standing to contest the IRS rule would be employers failing to offer their employees insurance (or at least affordable or adequate coverage), but that any such challenges would be barred by the Tax Anti-Injunction Act until probably sometime in 2015.”
“Media coverage of the two Supreme Court cases challenging Obamacare’s HHS mandate for employers to provide workers with “free” coverage of abortion-inducing drugs largely focused on Hobby Lobby, the arts and crafts chain founded by the Greens, an evangelical Christian family.
The case of another family-owned business also was heard by the high court, though — that of Conestoga Wood Specialties and the Hahns, Mennonite Christians from East Earl, Pa. The Hahns established their business — the manufacture of custom wood kitchen cabinets and parts — on Christian values and say they’re committed to applying those values in the workplace.
Why did they go to court, represented by the Alliance Defending Freedom? Regulations drawn up by the Department of Health and Human Services to implement the Affordable Care Act, or Obamacare, included the HHS rule mandating that employee insurance plans cover 20 forms of contraception, four of which are considered seen by many to be potentially life-ending.”
“SALEM, Ore. — Oracle Corp. has sued the state of Oregon in a fight over the state’s health insurance exchange, saying government officials are using the technology company’s software despite $23 million in disputed bills.
Oracle’s breach-of-contract lawsuit against Cover Oregon was filed Friday in federal court in Portland. It alleges that state officials repeatedly promised to pay the company but have not done so.
The lawsuit seeks payment of the disputed $23 million plus interest, along with other unspecified damages.
Oregon’s health-insurance enrollment website was never launched to the general public. State officials have blamed Oracle, but the company says the state’s bad management is responsible.
Gov. John Kitzhaber has called for the state to sue Oracle and recover some of the $134 million it has already paid to the Redwood City, California, company.
In June, Oregon issued legal demands for documents that could become evidence in a possible lawsuit against Oracle under the state’s False Claims Act.”
“Fresh Unlimited Inc. won’t have to provide contraceptive coverage for its employees under the Obama administration’s health-care reform law, in what may be the first exemption granted since a June U.S. Supreme Court ruling.
The parent of Freshway Foods today won an appeals court ruling that qualifies it for the same treatment the high court approved in its June 30 Hobby Lobby decision allowing family-run businesses to claim a religious exemption from the requirement to include contraceptives in their health insurance plans.
The suit by Francis and Philip Gilardi, who own Sidney, Ohio-based Freshway, is one of about 50 filed by for-profit businesses over religious objections to the Patient Protection and Affordable Care Act of 2010’s birth-control coverage mandate. The Gilardis are Roman Catholic and said that complying with the U.S. Department of Health and Human Services mandate would require them to violate deeply held religious beliefs.
U.S. District Judge Emmet Sullivan in Washington in March 2013 ruled against the Gilardis, saying that he couldn’t allow a corporation to assert the religious beliefs of individuals. The U.S. Court of Appeals reversed part of Sullivan’s decision, and the ruling was put on hold pending the Supreme Court’s resolution of the Hobby Lobby case.
In addition to carving a hole in the law, the Hobby Lobby ruling marked an expansion of corporate rights, allowing companies, like people, to claim religious freedom under federal law.”
“Religious liberty has long been considered our “first freedom” in America. So why are we spending so much time defending this freedom in court now?
Many celebrated the Supreme Court’s June 30 ruling on Hobby Lobby. But let’s not get ahead of ourselves: Plenty of other challenges are coming for churches, synagogues, mosques and, yes, businesses.
On July 21, President Obama issued an executive order that prohibits federal government contractors from “sexual orientation” and “gender identity” discrimination and forbids “gender identity” discrimination in the employment of federal employees. In a scathing response, the U.S. Conference of Catholic Bishops decried the executive order as “unprecedented and extreme and should be opposed.”
The bishops’ response, authored by Archbishop William Lori of Baltimore and Bishop Richard Malone of Buffalo, asserted that “in the name of forbidding discrimination, this order implements discrimination.” The bishops predicted that “faithful Catholics and many other people of faith will not assent” to the deeply flawed understanding of human sexuality undergirding the order. “As a result, the order will exclude federal contractors precisely on the basis of their religious beliefs,” the bishops said.”