King v. Burwell Pits Rule Of Law Against Rule By Decree

shutterstock_199125452-998x666In the next week, we are going to talk quite a lot about the “Rule of Law” as opposed to the prerogative power. here’s a foretaste of why it is so important.

[…] The president’s remarks come as the Supreme Court is preparing this month to decide King v. Burwell, a case that challenges whether the law ever actually authorized subsidies for health coverage paid out through federal exchanges. The details of Burwell reveal the degree to which the Obama administration’s handling of the ACA is ultimately at odds with ideals and aspirations that really are woven into the fabric of America: the rule of law and the separation of powers under the U.S. Constitution.

The ACA says plainly that subsidies may only be administered “through an Exchange established by the State.” But when it became clear that dozens of states were not going to create exchanges, the Internal Revenue Service (IRS), at the behest of the White House, simply issued a rule saying that subsidies could flow through exchanges created and operated by the federal government.

The Obama Administration Embodies Will to Power

In other words, the challengers in King v. Burwell contend that the White House illegally authorized billions of dollars of taxes and spending, circumventing Congress and flouting the statutory text of the ACA by administrative decree. The accusation isn’t a stretch. After all, governing by decree has become commonplace in the Obama era—from the ACA’s many unauthorized delays, to the president’s executive order on immigration last year, to the State Department’s recent gun speech gag order.

Continue readin: King v. Burwell Pits Rule Of Law Against Rule By Decree.


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23 Responses to King v. Burwell Pits Rule Of Law Against Rule By Decree

  1. the unit says:

    I will be following next week closely. I read the article at The Federalist. The comments are interesting too. I’m going to go back and read new following comments.
    Some are claiming Roberts being blacked mailed. I have to wonder. If director of the CIA couldn’t cover his tracks, who can?
    Also I haven’t had the nerve to go to that website that reveals anyone’s past. Thought I’d burned all those years of bridges behind me. “I can’t recall your Honor, or maybe plead the 5th.” 🙂

    Liked by 2 people

    • NEO says:

      I try not to judge him too harshly but the O’cae decisioon was badly flawed, i think. he’s not there to rewrite the law, simply to say aloud whether or not it’s constitutional. Still, this nonsense has been going since FDR threatened to pack the court.


  2. the unit says:

    So as not to reply to myself. Hours later and no new comments. I’m back to my original consideration of both parties and co-equal partners in government. That dog don’t hunt.

    Liked by 1 person

    • NEO says:

      Sorry bout that, Unit. I got tied up as well. 🙂 We could stand some more commenters though, although i haven’t a clue where to find them.

      Liked by 1 person

      • the unit says:

        When will I ever learn? Just looking who liked and then clicked it. Maybe that’s all it took to vote for O twice. 🙂

        Liked by 1 person

        • NEO says:

          In Chicago they used to give you pre-marked ballots, so you didn’t screw up.

          Liked by 1 person

      • the unit says:

        Was not complaining that you not commenting. Just that no new commenters over at the Federalist since I had checked earlier. Gonna go look again this Sunday morning. 🙂

        Liked by 1 person

        • NEO says:

          I haven’t been, either. 🙂


    • the unit says:

      And it was “that dog won’t hunt.” They were discussing potential hunt from previous experience, not on the ground right then. Why keep trying insanity and expecting a hunting dog? I had one then and now, dog and congressperson too. 🙂


  3. the unit says:

    Someone said…”if voting mattered they wouldn’t let us.” 🙂

    Liked by 1 person

    • NEO says:

      They just might have a point! Cynical, we are. 🙂

      Liked by 1 person

  4. John doe says:

    If I may ask, what is the end result here? What will happen at the end of the day?

    If the Supreme Court rules in favor of the ACA, then nothing happens, and vast amounts of time and resources were wasted in trying to overturn the ACA, unsuccessfully, yet again and Republicans look incredibly stupid.

    If the Supreme Court rules against the ACA…? Literally millions of Americans will wake up to find their health insurance has evaporated, and on the eve of yet another Presidential Election in which Republicans are fighting a losing battle to begin with.

    Neither case is good, and for good reason. The impetus behind both is abject stupidity, both in origination and in action. Back in the day, Republicans had something to believe in, not simply something to believe against, and in having something to believe in, they had ideas, and vision, and a whole system that could be implemented. Now there is a lackluster intellectual effort generally associated with trying to motivate the stupid and deluded.

    I’ve been a Republican my whole life, but there is a point where it no longer makes sense. But this perfectly explains the conundrum facing the GOP. If you are on a ship at sea, and you find out that the wrong wood was used to make part of the hull, you do not cut it out while still at sea, even if it was wrong. But today’s GOP would rather sink and drown at sea, correcting a perceived wrong, rather than effectively promote a system of governance. It is ideologically pure without being practically intelligent.

    And the entire article is completely ignoring the irony of the system of judicial review being used by the Supreme Court, that exists nowhere in legislation, but was simply implemented and thereby codified into existence, but is now accepted as normative.

    I do not object to coming up with an alternative to the ACA, but shouldn’t that happen first?

    Liked by 1 person

  5. NEO says:

    I can’t speak for you, of course, but I never consider it a waste of resources to defend the Constitution. that wasn’t your point, of course, but for me it’s the underlying point.

    It’s not my fault, nor is it the Republican’s fault that a democratic congress saddled the country with a law so poorly drawn, that the USG can’t understand what it says. If the Repubs want to share that blame, well then they deserve to lose.

    How about this, which is what I said back in 2012, allow interstate sales, increase the viability and applicability of medical saving accounts, and put in a personal deduction for insurance while removing the corporate one.

    Even better, of course, repeal the Internal Revenue Code and pass the flat tax. I too have been a republican my whole life, but that has more to do with how bad the Dems are than that the Repubs are much better. They’ve simply rebranded the old Whigs, and are mostly democrat-lite anymore, and no less corrupt.

    And no. Repeal then replace, otherwise we’ll simply end up with both, and that will be even worse.


  6. John doe says:

    I disagree. I think you will agree with my point.

    If the Supreme Court finds the law unConstitutional, is that in keeping with the Constitution?

    There is nothing about Constitutional review by the Supreme Court in the actual Constitution, it was an extra-Constitutional addendum effectively created by Supreme Court decree, that we all accept now as normative. Nevertheless the thrust of the article you are referencing has to do with legislating by decree, which I am sure you appreciate the irony of the potential situation. So how do you accept the position of the Supreme Court to even rule on this decision, either pro- or con- without accepting extra-Constitutional actions that effectively exist because “I said so” (in the case of John Jay saying so in this particular instance)?

    But that is not the point of the discussion. It is pointless to say “It’s not my fault, nor is it the Republican’s fault that a democratic congress saddled the country with a law so poorly drawn, that the USG can’t understand what it says.” The law has been implemented and is working in a manner of speaking. Someone clearly understands what it says, because it was put into action. You can say that you may not like it, but to claim no one understands it, when it is being implemented, is just poor argumentation. This is one of the problems I am talking about. An argument against the ACA needs to have some sort of logistical consistency, and most of what is being used it something like “no one understands what it says”. But what does that mean? It makes a great bumper sticker, but it lacks an applicable basis for an argument. I do not understand the tax code, but obviously someone does. If neither you, nor I, understand the full implications of the ACA, someone does.

    But let’s take your suggestion…

    “How about this, which is what I said back in 2012, allow interstate sales, increase the viability and applicability of medical saving accounts, and put in a personal deduction for insurance while removing the corporate one.”

    How is this actually going to work. How can someone making $50k a year as a family going to save enough to actually offput the potential risks associated with health potentialities given the normative costs? What is the amount necessary in the first place?

    Also, you want to remove corporate deductions for insurance? How? Simply pass it? What are the potential fallout? It is in a corporation’s best interest to have their employees insured, it provides a viable workforce and is essential at a certain level of income. You are not going to hire an engineer at $150k a year and then risk him or her getting sick and losing the investment in their potential outcome. So these people WILL be insured. But the increased costs are going to come from somewhere. Is the company going to suck it up? If so, the shareholders are going to get pissed by the lose revenue and get very upset. Are they going to pass it on to the consumer? If history is any indication, this is the most likely source of this offset. Now the consumer pays more.

    But is this an option either?

    I am not saying that your ideas are either good or bad, but there seem to be nuances that you are not considering. And therein lies the devil, in the details that make legislating difficult at best.

    As for a flat tax, I am not sure that will ever work. Can you name a comparable county to the USA, with an associated extremely complex economy where such a thing has proven viable in the past?


  7. John doe says:

    And just as a general question, when you said…

    “I can’t speak for you, of course, but I never consider it a waste of resources to defend the Constitution. that wasn’t your point, of course, but for me it’s the underlying point.”

    Can you quantify this? If repealing the ACA resulted in 8 years of a President Clinton 2.0, would you consider it an equal exchange?


  8. the unit says:

    I cannot read vast amounts of comment words to waste my time and resources upon. I have to go to the grocery this afternoon. Some sales end today as to conserving my resources.
    I’ll just say having insurance paid by somebody because you didn’t pay it by yourself does not mean you have healthcare.
    Years ago about midnight my mother called the doctor to tell of extreme pain in my side. Doc said take two aspirin and call me in the morning. We did and went to hospital in the morning. Appendix was about to burst. If it had Doc could have said…”What difference, at this point, does it make.” And he’d be right. Would have saved a lot of time and resources…and heart aches over the years. Also I would not be responding today.
    And it would be natural healthcare, like the rest of the world gets and insurance won’t change it. Hope/Nope, Not. There is a song…Just dropped in to see what condition my condition is in.’
    Sorry to be so wordy to say B.S. J. doe.

    Liked by 1 person

    • John doe says:

      This is part of the problem.

      “I cannot read vast amounts of comment words”

      I agree. I do not think you can. And this is a tragedy.

      Part of the reason that the GOP is failing is that it has largely failed to engage its base at an intellectual level, to the point that few can or will engage with the very complex and difficult nuances of trying to craft legislation for an extremely complex mechanism such as the United States.

      I am not calling you stupid, please do not misunderstand, but I am saying that you are completely unprepared to deal with this discussion. You’re not prepared to actually get into a discussion on these complex subjects that require a significant depth of study and investment.

      And this is a two way street. You don’t care enough to study yourself, and the GOP has not made an effort to work with the base to provide opportunities for adequate education. I do not know how to tip toe around the issue, other than to point out that the GOP has become the party of stupid because it treats its base as stupid. And the base largely does nothing about it.

      There is a reason Fox News viewers score so poorly on current events quizzes, and it is not because Conservatism has failed, but because the vehicle of information transmission, Fox News, has failed them. This is not liberal bias, it is not some sort of media conspiracy, it is an actual fact that most people who consider themselves Republican do not understand the issues they try to discuss. And it shows. And no one really cares to point it out. Most of my liberal friends can wipe the floor with the average Conservative, in part because they care and Conservatives do not. In all honesty, when liberals show up here, do you really debate with them, get into issues, or ban them and continue to express prepackaged talking points to an echo chamber?

      And I am at a loss. Unless individuals up their game, they will continue to work themselves into irrelevance. And this was once the part of Buckley and Goldwater and Friedman. They were big thinkers (and Goldwater was not an Ivy leaguer, that is not required).

      It is incredibly frustrating.


      • the unit says:

        Tragedy? That I don’t read a trolls words? You don’t call me stupid? Well you wouldn’t, meaning I’m smart. 1984! Up is down, sashay all around. I didn’t start the name calling, stupid or otherwise. And as to your investments…Bill Clinton proposed one twenty something years ago. Because my house was paid off after thirty years of paying…that’s not fair. Other folks are having to pay rent, so I need to pay a “imputed fee” equal to rent to live in my house, which goes to…then it was the government…now the Clinton Foundation, I suppose.
        BTW, just so’s you know I’m done with you.


  9. John doe says:

    Of course you are. You don’t have anything real to say about the issue, you’re not prepared to really dig into a discussion of either Constitutionality of the ACA or the incredibly complex world of health care, how to deal with ever rising costs, offsets by employers plans, or the necessities of controlling costs while expanding coverage. This is a conversation that NEEDS to happen, but within the claimed GOP/faux-Conservative crowd it is a conversation that cannot happen because…well…you can’t.

    I’m sure you’re a “good guy” but I have been reading your commentary here and it consists mostly of “If Obama’s fer it, I agin’ it” which is intellectually just plain idiotic. And if that is the cross, pointing out the blatant nudity of the emperor, so be it.

    NEO, you asked above, “We could stand some more commenters though, although i haven’t a clue where to find them.” I think it would be good for your blogging aspirations if you actively encouraged some significant discussion about issues. And that means a lot of reading and writing, which some will find odious.

    I made a simply comment about consequences of the potential ACA fallout, and you replied “I never consider it a waste of resources to defend the Constitution”. Really? Do you REALLY think that disagreeing with the Supreme Court case is now NOT defending the Constitution? Is having a differing opinion mean that you are now against the Constitution? Of course not, your comment was a defensive one, but part of the reason is that you I do not think you expected anyone to disagree with you. And if that is the case, why are you talking at all, simply to have everyone agree?

    Conservatism is dying, and the GOP is getting older, whiter, and dumber. This is not inevitable, but it is still where things are going.


    • the unit says:

      In spite of doe in the headlights continuation of derogatory comment…keeping my word and honoring my pledge of being through with this lifelong republican, unlike the pledge and word of republicans before then after their election, I am done with this one who not only has drunk the Cool Aid, but absorbed it like a natural sponge from ‘Beneath the Twelve Mile Reef.’ (Great movie BTW). J doe never to be squeezed out of the modern so-called liberal contaminants, major ones nor even minor ones. well until doe’s eyeballs seeing the headlights and he don’t move.

      Liked by 1 person

      • the unit says:

        I read a doe can be a he now, or even a different species.


    • NEO says:

      That will do. Unless you’ve something to say on point withoutpersonal arrack, we
      re done here.


  10. Pingback: My Article Read (6-14-2015) | My Daily Musing

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