Constitutional Lawyer: Yes, Obama’s Affordable Care Act Subsidy Provision Was Illegal

Townhall.com

by Matt Vespa

There’s are a lot of liberals frothing at the mouth over the Trump administration’s decision to end the unconstitutional subsidies to insurance companies under the Affordable Care Act last week. The subsidies were given to insurance companies to help offset costs from lower-income individuals concerning deductibles and other out-of-pocket expenses. It’s meant to prevent premium spikes. And the termination of this subsidy is not just a conservative view or action item, by the way. It’s the opinion of the courts, as the LA Times reported back in May of 2016–it’s unconstitutional:

House Republicans won Round 2 in a potentially historic lawsuit Thursday when a federal judge declared the Obama administration was unconstitutionally spending money to subsidize health insurers without obtaining an appropriation from Congress.

Last year, U.S. District Court Judge Rosemary Collyer broke new ground by ruling the GOP-controlled House of  Representatives had legal standing to sue the president over how he was enforcing his signature healthcare law.

On Thursday, she ruled the administration is violating a provision of the law by paying promised reimbursements to health insurers who provide coverage at reduced costs to low-income Americans.

The judge’s ruling, while a setback for the administration, was put on hold immediately and stands a good chance of being overturned on appeal.

Well, it prompted 18 states to sue the Trump administration over this decision. As with the issue over the Deferred Action for Childhood Arrivals program on immigration, it’s another example of executive overreach under Obama, bypassing Congress on issues that only the legislative branch can legally resolve. Josh Blackman elaborated on this subsidy provision in National Review back in July:

In 2014, a federal judge concluded that with the so-called OPM fix, the “executive branch has rewritten a key provision of the ACA so as to render it essentially meaningless in order to save members of Congress and their staffs.” Allowing the administration to rewrite the law, he wrote, “would be a violation of Article I of the Constitution, which reposes the lawmaking power in the legislative branch.” However, because the plaintiffs in the lawsuit (Senator Ron Johnson and one of his staffers) were not personally injured by OPM’s policy — indeed they benefited — the case was dismissed for lack of standing. While the Obama administration was content to make these illegal payments, the Trump administration should halt them.

Congress is not the only beneficiary of such illegal largess. The ACA employed two strategies to make health insurance more affordable. Section 1401 of the law provides for the payment of subsidies to consumers to reduce premiums. Section 1402 provides payments to insurers to offset certain “cost sharing” fees, such as deductibles and co-pays. But while the ACA funds the subsidies under Section 1401 with a permanent appropriation, to date, Congress has not provided an annual appropriation for the cost-sharing subsidies under Section 1402.

Once again, where Congress would not act, President Obama did so unilaterally. The executive branch pretended that the ACA had actually funded Section 1402 all along, and it paid billions of dollars to insurers. Once again, Mr. Trump is exactly right that this is a “BAILOUT.” And, once again, the payments are a violation of the separation of powers.

Now, we have Jonathan Turley, a constitutional scholar at the George Washington University Law School, reiterating the point that the Obamacare subsidy provision was unconstitutional with Fox News’ Bret Baier last Friday. Turley added that the court ruling made it clear that you have to play within the confines of the U.S. Constitution, and that even benevolent reasons are not good enough to usurp the rule of law  (via RCP):

Can the president get away with stopping ObamaCare payments?

BRET BAIER, SPECIAL REPORT: Can the president stop Obamacare subsidies? … You’re also the lead counsel for the U.S. House of Representatives in the challenge to the actions by the Obama administration to set up these subsidies in a court case that ended in victory. So, this is a Constitutional move.JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW PROFESSOR: The original order that has just been rescinded was unconstitutional by finding of a federal court. The court found it not only violated Article One of the Constitution, it violated the health care law itself. Because Congress had the ability to grant subsidies under the federal law but it chosen not to. In fact, the administration had come to Congress and asked for this money and Congress said no. And then the president say alright, I’ll just order it directly from the Treasury. Well, you can’t do that. The defining power of Congress is the power of the purse. And the federal judge issued a historic ruling and said this is wrong, you can’t violate the Constitution no matter what your motivations are, no matter what you’re complaining about with Congress, you have to play within the rules of the Constitution.

Judicial Watch Sues Deep State FBI

Judicial Watch

Judicial Watch Files Three Lawsuits Seeking Communications of Acting FBI Director Andrew McCabe

These past few days saw a significant advance in our efforts to plumb the depths of what was going on at the top of the FBI during the late stages of the Obama administration and during the early days of the Trump administration.  The advance includes three Freedom of Information Act (FOIA) lawsuits against the U.S. Department of Justice seeking records for FBI Acting Director Andrew McCabe relating to his political activities, travel vouchers, and employment status.  The first two lawsuits specifically seek records of McCabe’s political activities involving his wife’s failed campaign for political office and interactions with Virginia Gov. Terry McAuliffe.

The first FOIA lawsuit, filed on July 24 (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01494)), seeks the following:

  • Any and all records of communication between FBI Deputy Director Andrew McCabe and other FBI or Department of Justice (“DOJ”) officials regarding, concerning, or relating to ethical issues concerning the involvement of Andrew McCabe and/or his wife, Dr. Jill McCabe, in political campaigns;
  • Any and all records related to ethical guidance concerning political activities provided to Deputy Director McCabe by FBI and/or DOJ officials or elements.

The second Judicial Watch FOIA lawsuit, filed on July 26, (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01495)) seeks communication records between then-Deputy Director McCabe and Gov. Terry McAuliffe, the Democratic National Committee (DNC), and the Democratic Party of Virginia, including:

  • Any and all records of communication between Deputy FBI Director Andrew McCabe and any of the following individuals:

    Any official within the office of the Governor of Virginia, including but not limited to Governor Terry McAuliffe;

    Any official, representative or employee with the Democratic National Committee; and

    Any official, representative or employee with the Democratic Party of Virginia.

In 2015, a political action committee run by McAuliffe, a close friend and political supporter of Bill and Hillary Clinton, donated nearly $500,000 to Jill McCabe, wife of McCabe, who was then running for the Virginia State Senate.  Also, the Virginia Democratic Party, over which McAuliffe had significant influence, donated an additional $207,788 to the Jill McCabe campaign.  In July 2015, Andrew McCabe was in charge of the FBI’s Washington, DC, field office, which provided personnel resources to the Clinton email probe. McAuliffe himself was (and still may be) was under FBI investigation as well.

The Hatch Act prohibits FBI employees from engaging “in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group.”

The third FOIA lawsuit filed this week came on July 26 (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01493) for:

  • Any and all Standard Forms 50 and 52 (i.e., SF-50s and SF-52s) for FBI Deputy Director Andrew McCabe;
  • Any and all requests for approvals of travel submitted by FBI Deputy Director Andrew McCabe;
  • Any and all travel vouchers and accompanying receipts and related documentation submitted by FBI Deputy Director Andrew McCabe;
  • Any and all calendar entries for FBI Deputy Director Andrew McCabe.

These are all basic requests about the acting FBI director.   The cover-up of the records is a good indication that both the FBI and its parent the Justice Department are out-of-control.

There are numerous questions about the ethics and judgement of the FBI’s top leadership, particularly Acting FBI Director Andrew McCabe.  These new lawsuits will help Americans “watch the watchers” at the powerful FBI.

 

Judicial Watch Sues for More Info on Comey Memos

We ramped up the pressure on the Deep State yesterday with another Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Justice looking for answers from the FBI, this one for the metadata for the memoranda written by former FBI Director James Comey memorializing his conversations with President Donald Trump, as well as records about Comey’s FBI-issued laptop computer or other electronic devices and records about how Comey managed his records while he was FBI Director (Judicial Watch, Inc., v. U.S. Department of Justice (No. 17-cv-01520)). Importantly, the metadata information may include details about when the memos were created or edited and by whom.

We sued here in DC after Justice simply failed to respond to our June 21 FOIA request for:

  1. Any and all records depicting metadata for any and all memoranda written by former Director James Comey memorializing any meetings and/or telephonic communications with President Donald Trump, including metadata for the “original” electronic versions of the memoranda and any electronic copies of the memoranda that were subsequently created or saved. For purposes of this request, the term “metadata” includes, but is not limited to, dates and times of creation, modification, transmission, and/or retrieval of any electronic copy of any such memorandum currently or formerly in the possession of the FBI and/or drafted, modified, transmitted, and/or received via any FBI-owned computer or other electronic device.
  1. Any and all records regarding, concerning, or related to the return, disposition, or handling of any laptop computer or other electronic device previously issued to and/or utilized by former Director James Comey.
  1. Any and all records regarding, concerning, or related to the records management and preservation procedures utilized by former Director James Comey. This includes, but is not limited to, any and all records of communication between Mr. Comey and any other individual or entity regarding, concerning, or related to any such procedures or related regulations.

In an earlier, related FOIA lawsuit, JW sued the Justice Department for information about former FBI Director James Comey’s memorandum written after his meeting with President Trump regarding potential interference by the Russians in the 2016 presidential election (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-01189).

The infamous Comey memo purportedly memorialized his meeting and conversation with President Trump regarding the FBI’s investigation of potential Russian interference in the 2016 United States presidential election.

The memorandum, reportedly, was written on or about February 13, 2017 and was the subject of a New York Times article dated May 16, 2017.  The memo also purportedly recounts a conversation between President Trump and Comey about a pending investigation of former National Security Advisor Gen. Mike Flynn.

As you know probably know from earlier Weekly Updates, Judicial Watch is pursuing numerous additional FOIA lawsuits related to the surveillance, unmasking, and illegal leaking targeting President Trump and his associates during the FBI’s investigation of potential Russian involvement in the 2016 presidential election.  You can review some of them here, hereherehere, here, and here.  Last month, Judicial Watch also warned the FBI of its obligations under federal law to uncover records unlawfully removed by Mr. Comey.

We want to figure out when Mr. Comey wrote or edited his memos and how his records were created and managed by the FBI.  The fact that Mr. Comey walked out of the FBI with these sensitive documents tells us something isn’t right at the FBI and Justice Department.

Rather than wait for Congress, the media, or a compromised special counsel, we are in court to get answers.

Obamacare’s Healthcare.gov Security Nightmare Revealed

As a hapless Republican-controlled Congress grapples with the Obamacare monstrosity, your JW is hard at work exposing the security risk scandal associated with the Obamacare supersite – healthCare.gov.  We released two productions of records from the Department of Health and Human Services (HHS) today – a total of 1123 pages of documents showing security concerns Obama officials had about the Obamacare website prior to its launch.

JW obtained the HHS documents in response to a court order in a Freedom of Information Act (FOIA) lawsuit (Judicial Watch v. U.S. Department of Health and Human Services (No. 1:14-cv-00430)).  We began battling for documents back December, 2013, with a FOIA request for:

All records related to the security of the healthcare.gov web portal including, but not limited to, studies, memoranda, correspondence, electronic communications (e-mails), and slide presentations from January 1, 2012 to the present.

The documents show a flippant disregard for senior IT security official Tom Schankweiler’s security concerns in a September 23, 2013, email exchange between then-CMS Chief Information Officer Fryer and CMS official Jacqueline Toomey, one week before the launch of Obamacare. Toomey tells Fryer: “Breathe … don’t allow him to suck you in.”  Toomey responds later in the exchange:  “I’m afraid of who he’s ‘blind copying’ on his emails.”  Fryer says: “When [Consumer Information and Insurance Systems Group] gets theirs, can you make a gagging sound for me?”  Toomey responds: “Giggling.”

In a September 28, 2013, review, Chief Information Security Officer (CISO) Jane Kim notes that “the risk associated with the Illinois Integrated Eligibility System ATC [Authorization to Connect] as “high,” noting that “87 security controls [were] not documented or incomplete.”  Risk associated with Minnesota’s application to connect was also deemed “high,” with 110 incomplete or undocumented security controls. Pennsylvania’s risk was also deemed “high,” with 10 high level security findings. Hawaii was also considered a “high” risk, with 23 “high-impact” security findings.

A security spreadsheet in a September 19, 2013 email exchange shows a “high” level defect in the Obamacare website was discovered.  That finding prompted top IT security officials to schedule an emergency conference call in which senior IT security official Tom Schankweiler tries to persuade then-CMS Chief Information Officer Teresa Fryer to issue a “short term ATO [Authorization of Operate].”

In the CMS “Pre-Flight Checklist” published on September 20, 2013, is a chart that indicates that the “Hub,” designed to help with verifying applicant information used to determine eligibility for enrollment, was unable to perform its tasks. Regarding verification of citizenship is the comment: “Hub has been too irregular to work thorough this, and still don’t have the right data to test to the 5-year bar.” Regarding verification of SSN is the comment: “Hub,” has reliability issues …” The Pre-flight Checklist also notes nine “high” security risks, 123 “moderate” security risks, 68 “low” and 17 “common” risks in various components of the Obamacare system.

On October 1, Americans started shopping for health insurance on healthcare.gov, and the site crashed.

Our lawsuit has produced disclosure after disclosure about the Obamacare website disaster and the risk Americans were taking by using it:

  • In September 2014, Judicial Watch released 94 pages of documentsobtained from the U.S. Department of Health and Human Services (HHS) including Security Controls Assessment Test Plans sent by CMS to Mitre Corporation.  CMS advised Mitre that the highest “Risk Rating” should be given to flaws that could cause “political” damage to CMS.  Moderate and low “Risk Ratings” were to include those resulting in potential “public embarrassment” to the agency.
  • In March 2015, Judicial Watch released  documentsfrom the U.S. Department of Health and Human Services (HHS) revealing that Department of Homeland Security (DHS) worked with HHS on security for healthcare.gov.
  • And just recently, Judicial Watch released 944 pages of Department of Health and Human Services records showing that the Obamacare website was launched despite serious concerns by its security testing contractor, Mitre Corporation, as well as internal executive-level apprehension about security.

The evidence is overwhelming that the Obamacare website is a high-risk proposition for anyone who uses it.  The Trump administration should do an immediate security audit of the Obamacare official website.  In the meantime, you should know that your private health data is at risk on the Obamacare website.

Trump’s Court Battle in Perspective

https://i2.wp.com/www.financetwitter.com/wp-content/uploads/2016/11/President-Donald-Trump-in-Oval-Office.jpg

image via financetwitter.com

Family Security Matters

by ROGER ARONOFF

Now that a federal appeals court panel has upheld the freeze on President Donald Trump’s executive order on refugees and immigration, he will likely have his first case before the U.S. Supreme Court in the not too distant future. This may have been an unforced error on the part of the President. While I believe it was wrong and counter-productive for President Trump to belittle the Washington state judge and suggest that even a “bad high school student” would understand the law, the media, in their hyper-hostility toward Trump, are demonstrating their complete double standard. Where was their criticism of Obama when he attacked and pressured the courts to rule in his favor, or condemned them after rulings went against him? The press was missing in action.

President Obama wasn’t shy about criticizing the courts. He did so during his 2010 State of the Union address where he criticized the Supreme Court’s ruling on Citizens United. “With all due deference to separation of powers,” said [1] Obama, “last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” Justice Samuel A. Alito made news by mouthing “Not true” in response to the president’s comments.

Just “two days before oral arguments” in the Obamacare case known as King v. Burwell, writes [2] Josh Blackman, a constitutional law professor at South Texas College of Law in Houston, Obama told Reuters, “In our view, [there was] not a plausible legal basis for striking [the IRS rule] down.”

Continue reading

The Top Ten Misreported And Underreported Stories Of 2016

Accuracy in Media

by

 

As we look back on 2016, we would like to highlight some of the American media’s worst abuses that occurred during the past year, including coverage of the very divisive election campaign. We have picked ten stories in which the media were either derelict in their duty to report the truth, or sold a false or biased narrative to the public that furthered the left’s agenda. In other cases, the media missed the story altogether or made excuses for their own biased reporting. We could easily have picked additional stories that meet those criteria, but arbitrarily chose to look at ten, in no particular order.

  1.    Presidential Election Coverage
  2.    Hillary Clinton Email / National Security Scandal
  3.    Clinton Foundation / Pay for Play
  4.    Rigged FBI Investigation
  5.    Obama’s Legacy Failures
  6.    Iran Nuclear Deal
  7.    Obamacare
  8.    The Economy
  9.    Terror Attacks in the United States (Islamic Terror)
  10.    Benghazi 

Continue reading

Socialism Is Dying Everywhere — Except The U.S.

https://www.investors.com/wp-content/uploads/2016/05/EDIT2-hugo-051316-AP.jpg

Investors.com

Socialism: Around the world, nations that have been foolish enough to adopt socialist policies either collapsed or are well on their way to doing so. Why, then, are so many in the U.S. enthralled with the idea?

A quick look at the world’s countries in direst economic shape reveals that many, if not most, have one thing in common: They rely on top-down socialist control, rather than free markets, to run their economies. The former, history amply shows, are doomed to fail. There are no long-term socialist success stories. None.

Continue reading

Dear Republican Establishment…

eNAiTz45V6Sm-PwyNhtcVMR8mOy9vH9h6z49affc8HJVu0HeK6kAhg9LLeR_wIOo0EmCIncXRfhj0Ze_7lpZxfQPjul3rCs0HYCwegoCG_bOukp6rPN1psflYkMT9fF9kSSv8OZmZHxJV2wyuXSHPOaJLA=s0-d-e1-ft
Independent Sentinel

Dear Republican Establishment:
I’m going to give you the Readers Digest version of why Ted Cruz and Donald Trump are leading in the Republican Primary.

In 2008, John McCain, a sitting Senator and a war hero, was running against the first African-American presidential candidate. Perhaps, the Republican party should have considered their own non-white candidate to appease a nation who thought skin color was more important than the proven character and experience of an “old white guy”.

Although I still believe McCain could have won, if not for the collapse of the Lehman Brothers and the fallout that followed, nonetheless, the Republicans failed to win this election.

In 2012, the Republicans nominated Mitt Romney. With millions of people protesting the Obama Healthcare Tax being shoved down our throats, the Republican Establishment picks the one guy who had already implemented this law in his own state. Would Romney fight the forced healthcare act that was the hot button issue in 2012, after all, he was the Daddy of it? Instead of fighting Obama and Obamacare, Romney became an apologist. He would attack Obama on his policy, get criticized in the papers and the next day he would be a blubbering idiot apologizing for offending Obama. All he did was offend the American people.

The Republican supporters refused to elect weak-kneed Romney, giving Obama the easy win. What the voters did do, however, was give the Republican the majority in the House and Senate. The People felt that in this position, the Republicans could stop Obama and his socialist agenda. Brilliant strategy that did not happen because the Republicans had the power, but they refuse to use it.

Continue reading

Obama: The Lamest Duck

PJ Media
By Victor Davis Hanson

 

President Obama is boxed in a state of paralysis—more so than typical lame-duck presidents.

His hard-left politics have insidiously eroded the Democratic Party, which has lost both houses of Congress and the vast majority of the state legislatures, state elected offices, and governorships. Obama has redefined the black vote, as a necessary, no-margin-of-error 95% bloc majority to offset his similar creation of an increasingly monolithic 65% bloc white vote. We are no longer individual voters, but, in Chicago-politics style, merely faceless “Latinos,” “Asians,” “African-Americans,” “gays,” “women,” and now “whites.”

Obama issues a new initiative—and the nation snoozes. He wastes the day on the golf links—and the nation snoozes. He smear his critics, invites a rapper to the White House whose latest album cover has a dead white judge lying in front of the White House—and the nation snoozes. He cozies up to America’s enemies and snubs our friends—and the nation snoozes. For the nth time, he blusters about closing down Guantanamo—and the nation snoozes. He opens the border even wider to welcome in more illegal aliens and future constituents—and the nation snoozes. Lame duckestry means not even being able to wake up your opponents.

There is so far no Obama legacy, except the creation of Donald Trump, a $20 trillion debt and zero interest rates—and the gift of flat energy prices that came despite not because of Obama’s efforts. Almost every major bureaucracy is awash in scandal or charges of incompetence. The common theme of the disasters at the GSA, EPA, ICE, IRS, NASA, Secret Service, and VA is ideological subversion and ingrained hostility to meritocracy. Would anyone be surprised that another government official pled the 5th, created fake email personas, resigned at 5 PM on a Friday afternoon, declared a foremost mission Muslim outreach, or withheld subpoenaed documents?

Continue reading