A great analogy.
Congress has no authority to grant bureaucrats such discretion either way. It cannot simply hand over its powers to another branch of the government. That is the subject of a recent book by Columbia Law School professor Philip Hamburger, Is Administrative Law Unlawful? Hamburger’s thesis is that federal agencies are under the control of the executive branch and, by definition, have no power to create regulations that legally bind anyone. That is, of course, precisely what HHS attempted when it drew up its list of “must cover” contraceptives.
During oral arguments in Burwell v Hobby Lobby, Justice Kennedy was obviously interested in this issue and its implications for the separation of powers. Among his questions to the government lawyers was the following: “Now, what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” According to Hamburger, it gives us a structure more like that which England’s James I presided over than anything envisioned by the framers.
The latter favored a very weak executive branch. In fact, according to Hamburger, they didn’t want it “bringing matters to the courts or … physically carrying out their binding acts.” This is why the Constitution is so specific about the separation of powers. The framers must have been spinning in their graves when the government lawyers were arguing Burwell v. Hobby Lobby and Halbig v. Burwell. But shady deals like the cornhusker kickback and violations of the separation of powers doctrine are but two of the birth defects with which Obamacare was born.
And, as he notes, the Origination problem will be potentially fatal as well.
This is very interesting:
“Klein demonstrates why Obamacare’s supporters almost always get it wrong where the courts are concerned. They can never quite figure out what these cases are about. On Halbig, they actually think the problem is poor word choice. But that case is no more about grammar or “scrivener errors” than the Hobby Lobby case was about contraception. Burwell v Hobby Lobby was actually about a birth defect that Obamacare has in common with much recent legislation—it cedes congressional prerogatives to bureaucrats who then issue unconstitutional decrees.
Oddly enough, the Patient Protection and Affordable Care Act does not specifically mandate the kind of abortion-inducing drugs to which the owners of Hobby Lobby objected. The list of drugs that caused them to file their suit against the government was drawn up by the minions of Kathleen Sebelius at HHS. If Sebelius, exercising the “wide discretion” granted by Obamacare, had kept that list to only the sixteen types of contraception already covered by the company, the Obama administration would not have received last month’s high court drubbing.
But Congress has no authority to grant bureaucrats such discretion either way. It cannot simply hand over its powers to another branch of the government. That is the subject of a recent book by Columbia Law School professor Philip Hamburger, Is Administrative Law Unlawful? Hamburger’s thesis is that federal agencies are under the control of the executive branch and, by definition, have no power to create regulations that legally bind anyone. That is, of course, precisely what HHS attempted when it drew up its list of “must cover” contraceptives.”
Congress has no authority to grant bureaucrats such discretion either way. – Except it’s been doing exactly that for over 100 years.
I wonder why Chris Gerrib is getting his skivvies in such a bundle over this. If we are to obey the obvious statures quoted by Chris, then the left must be obeying, to the Full Letter of the Law, the Hobby Lobby decision. In fact, there wasn’t a single cry of despair over that decision.
Except in this case, the law mandates that, if the state doesn’t set up an Exchange, the Feds do so. (source – scroll down). Quote:
“SEC. 1321. STATE FLEXIBILITY IN OPERATION AND ENFORCEMENT OF EXCHANGES AND RELATED REQUIREMENTS.
…
c) Failure To Establish Exchange or Implement Requirements-
(1) IN GENERAL- If–
(A) a State is not an electing State under subsection (b); or
(B) the Secretary determines, on or before January 1, 2013, that an electing State–
(i) will not have any required Exchange operational by January 1, 2014; or
(ii) has not taken the actions the Secretary determines necessary to implement–
(I) the other requirements set forth in the standards under subsection (a); or
(II) 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.”
As far as the success of the law, The percentage of Americans without health insurance continues to fall, measuring 15.9% so far in 2014 compared with 17.1% in the fourth quarter of 2013.. That’s a net number, so the law is in fact working.
Except you’re quoting apart of the law that was not the deciding factor by the court.
As for the law working, I’m glad to see Democrats finally admitting that the point of ACA was not to provide healthcare at an affordable cost, but to shovel clients to the insurance industry. If the law was about providing healthcare, rather than forced customers to insurance companies (part of the wealth redistribution I’m sure), then the metric wouldn’t be the number of people having insurance.
A 1.1% decrease? That is not what was promised.
The Gallup survey Chris links to is from March. The June figure is 13.4%, a 4.6% decrease from the 18.0% mid-2013 level. Cutting the uninsured rate by 25% in a year is a major accomplishment, and is in line with what was forecast.
“4.6% decrease from the 18.0% mid-2013 level”
Also not as advertised. But clap yourself on the back that mandating that everyone buy insurance and expanding who qualifies for welfare led to such a meager reduction in the uninsured. We will eventually have close to 100% of people insured because it is illegal not to have insurance.
The other things that were supposed to come with Obamacare like reduced costs, higher quality health care, and increased access are not mandated. It isn’t illegal if these things don’t happen. There are no mechanisms in place to see that these Obama promises happen. There is no accountability for making the system operate as promised as there is forcing citizens to buy government approved insurance.
How about the government face some penalties for poor performance or is it only the American people who are punished under Obama’s system?
Also not as advertised.
It’s pretty much as advertised. The CBO forecast was that uninsurance would be cut in half by 2023. Getting halfway to that goal in less than a year is a great first step.
We will eventually have close to 100% of people insured because it is illegal not to have insurance.
It isn’t illegal, you can pay the penalty. And the mandate doesn’t apply to the undocumented, who aren’t eligible for subsidies or Medicaid, so most of them will continue to be uninsured.
There are no mechanisms in place to see that these Obama promises happen.
The entire law is a mechanism to reduce cost growth, improve quality and increase access. And so far it’s working.
The entire law is a mechanism to reduce cost growth, improve quality and increase access. And so far it’s working.
Jim, you know damned well that it isn’t true. You are paying less at the expense of other people, like me, but especially at the expense of unborn children who will have to cough up your insurance premiums in taxes long after you are gone. Which is a shame, because a true, free-market system would have reduced costs.
It’s too bad that this perceived unfairness in high insurance premiums was actually imposed on you by the failures of your state’s insurance commissioner.
By your own source, the uninsured rate was 14.4 percent prior to Obamacare. Why do you think it skyrocketed to 18 percent as Obamacare was implemented last year? Gee. Were people losing their insurance?
By your own source, the uninsured rate was 14.4 percent prior to Obamacare
That was in 2008, before the financial crash. It was above 16% from 2009 until the Obamacare exchanges and Medicaid expansion took effect this year.
And I wonder how much of that is people unable to find work who leave the labor force, go on Medicaid, and get Obamacare for free.
Some of the newly insured are on Medicaid (they may be unemployed, or working but earning less than 138% of the poverty level). As a result, there’s been a drop in uncompensated care at hospitals in states that expanded Medicaid.
Reducing the number of poor people without health insurance was one of the goals of the ACA, and in the states that expanded Medicaid (about half of them) that goal is being met.
So Jim, if expanding Medicaid–paid by states, yes?–is enough to cause a drop in uninsured which you claim to Obamacare’s credit, then maybe we could have stuck with that, and not buggered up so much else?
Medicaid expansion is funded (100% to start, 90% after 2017) by the federal government, paid for by Obamacare taxes.
Jim, your answer didn’t match my memory, so I checked instead. Looks like the feds cover half-ish to 3/4.
http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Financing-and-Reimbursement/Financing-and-Reimbursement.html
Your link is about traditional Medicaid. The Medicaid expansion in the Affordable Care Act is 90-100% federally funded. See here, under “Financing”: “Beginning in 2014 coverage for the newly eligible adults will be fully funded by the federal government for three years. It will phase down to 90% by 2020.”
The irony is that states that turn down Medicaid expansion still pay the federal taxes that fund Medicaid expansion in the other states. If the Halbig ruling sticks, there will be a similar irony with subsidies for insurance purchased on the exchanges: states that don’t run their own exchanges will pay taxes to fund subsidies for people in states that do.