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If Obamacare is overturned, a Case Western law professor gets the credit
Cleveland Plain Dealer ^ | 12/4/2013 | Stephen Koff

Posted on 12/04/2013 11:28:13 AM PST by EBH

If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.

Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.

Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.

Adler, a case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.

But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.

(Excerpt) Read more at cleveland.com ...


TOPICS: Business/Economy; Government; News/Current Events; US: Ohio
KEYWORDS: case; obamacare; ohio
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1 posted on 12/04/2013 11:28:13 AM PST by EBH
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To: Las Vegas Dave

Ohio ping?


2 posted on 12/04/2013 11:28:53 AM PST by EBH ( The Day of the Patriot has arrived.)
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To: EBH

At this point, the US Government could not care less about any contradictions or over-reaches in the law. The law is effectively meaningless - its the results they are after and it is full-steam ahead.


3 posted on 12/04/2013 11:38:29 AM PST by PGR88
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To: PGR88

Bingo.


4 posted on 12/04/2013 11:41:05 AM PST by Ray76
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To: EBH
Technicalities.....
5 posted on 12/04/2013 11:43:59 AM PST by Sybeck1
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To: EBH

John Roberts will swat this challenge away like it’s a drunken fly.


6 posted on 12/04/2013 11:46:07 AM PST by BlueStateRightist (Government is best which governs least.)
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To: EBH

If “the Devil is in the details” — then let’s get the Devil to help us ... :-) ...


7 posted on 12/04/2013 11:47:02 AM PST by Star Traveler (Remember to keep the Messiah of Israel in the One-World Government that we look forward to coming)
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To: PGR88

The law is what Jarrett and Obama say it is. Maybe even just Jarrett. We have no SCOTUS or Legislative branches any more.


8 posted on 12/04/2013 11:47:07 AM PST by Don Corleone ("Oil the gun..eat the cannoli. Take it to the Mattress.")
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To: EBH

That all sounds important.

But when the SCOTUS was considering whether or not our federal government could FORCE by threat of punishment someone to purchase a product, they overroad the defendants own orginal argument and changed punishment to a “tax”. Roberts bent over backwards to find a way to rule the mandate constitutional. In doing so, he invalidated the origination and construct of the law. It did not originate or get passed by the House of Reps as all tax law should. It was argued, presented and passed on Christmas Eve under and invalid pretense. If Obamacare is actually a tax law, as it is actually run by the IRS, it should be repealed on process grounds.


9 posted on 12/04/2013 11:48:18 AM PST by Tenacious 1 (Liberals can afford for things to go well, to work, for folks to be happy. They'd be out of work.)
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To: EBH

I am unsure about this.

It has been said the law states that if states refuse to setup exchanges, then the federal government will do it for them and charge a penalty.

If the above is the case, then I don’t think this approach has legs.

The surest way to get rid of the Obamacare beast is to defund it and then later repeal it.

However, if as reports say are true that Boehner is going to push through immigration reform early next year, then there will be no republican party power to defund or repeal Obamacare.

What will happen is that the illegals who will be legalized will register to vote regardless of citizenship status. The 2014 elections will then result in power maintained by the democrats in the Senate and probably a return of the House to the democrats.

The republicans in power will do this to hold onto incumbency, nothing more.


10 posted on 12/04/2013 11:49:52 AM PST by Hostage (Be Breitbart!)
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To: EBH

I agree with him but let’s wait and see what the courts do. After the roberts fiasco I do not trust the courts to do the right thing


11 posted on 12/04/2013 11:51:00 AM PST by Nifster
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To: Hostage

Maybe there were referring to all 57 states??


12 posted on 12/04/2013 11:52:58 AM PST by Mouton (The insurrection laws perpetuate what we have for a government now.)
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To: EBH; ADemocratNoMore; Akron Al; arbee4bush; agrace; ATOMIC_PUNK; Badeye; Bikers4Bush; ...

Special pings to the lists..!


13 posted on 12/04/2013 11:53:13 AM PST by Las Vegas Dave (The democRATic party preys on the ignorant..!)
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To: EBH

In the public interest, an expedited ruling in favor of the plaintiffs would be an extremely nice Christmas present!


14 posted on 12/04/2013 11:57:02 AM PST by Real Cynic No More (Border Fence Obamacare!)
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To: Nifster
After the roberts fiasco I do not trust the courts to do the right thing

Yes, I think we are on our own from here on out. The Constitution isn't being upheld anywhere, whether it's the legislative or judicial branches.
15 posted on 12/04/2013 11:57:58 AM PST by yorkiemom
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To: rdb3

Cleveland ping


16 posted on 12/04/2013 11:58:04 AM PST by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both.)
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To: EBH

I follow the blog that he regularly posts in (The Volokh Conspiracy). Mr. Adler is a very strong advocate of the position that the second amendment does NOT apply to individuals, the two recent Supreme Court decisions notwithstanding. He is convinced SCOTUS got those decisions wrong. According to him, the second amendment only applies to organized militias.

I don’t know if his reasoning is any better here.


17 posted on 12/04/2013 11:59:56 AM PST by jim_trent
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To: EBH

“Based on the law, Adler says, the Internal Revenue Service has no legal authority to give tax subsidies to people enrolling in the federal exchange. The IRS wrote a regulation as if it has that right, but Adler says the ACA never empowered it to do so.”

*****

This is really interesting. I hope he is successful.


18 posted on 12/04/2013 12:00:41 PM PST by Slyfox (Satan's goal is to rub out the image of God he sees in the face of every human.)
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To: BenLurkin
“Damn the torpedo's, full speed ahead”, says odumbo
19 posted on 12/04/2013 12:00:57 PM PST by DaveA37
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To: PGR88

Correct. They’ll get crazy rulings from wacko Judges, or they’ll just ignore the law and plow ahead. Either way, no biggy to them.

Obastard signaled a willingness to do this back when he ordered a moratorium on drilling in the Gulf of Mexico, flying in the face of a Federal Court decision specifically forbidding the action. If there was any doubt about his willingness to be a lawless President, that one thing alone cleared all that up.


20 posted on 12/04/2013 12:02:25 PM PST by Cyber Liberty (H.L. Mencken: "The urge to save humanity is almost always a false front for the urge to rule.")
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To: Nifster

I learned to not trust the Courts a long time ago. They’re a crap-shoot. I’ve seen Judges blatantly break the law almost every time I’ve been in a courtroom, even when they know for a fact you’re going to break them on appeal. They can’t help themselves.


21 posted on 12/04/2013 12:06:06 PM PST by Cyber Liberty (H.L. Mencken: "The urge to save humanity is almost always a false front for the urge to rule.")
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To: EBH

I’m all for it.

I’m a realist, therefore one of two paths will occur:

1. Continued blackmail will make Roberts swat it away like some say in this thread OR

2. Roberts will use it as a lifeline to regain sanity because he wasn’t blackmailed after all.

Not sure which, obviously I hope for the latter.


22 posted on 12/04/2013 12:07:32 PM PST by CincyRichieRich (“Some animals are more equal than others" - George Orwell)
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To: EBH; All
Thank you for referencing that article EBH. Please bear in mind that the following critique is directed at the article and not at you.

I hope that most freepers understand that the main problem with Obamacare does not concern technicalities in the poorly written law that law professors are unsurprisingly finding in Obamacare. The problem with Obamacare that every legal voter should be able to point out is the following. The states have never delegated to Congress, via the Constitution, the specific power to regulate, tax and spend for public healthcare purposes.

In fact, regardless what activist justices want everybody to think about Obamacare, the Supreme Court had previously clarified that the states have never granted Congess the specific power to address public healthcare issues.

"State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. (emphases added)" --Gibbons v. Ogden, 1824.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Justice John Marshall, Gibbons v. Ogden, 1824.

In other words, corrupt Congress wrongly ignored its constitutional Article V requirement to petition the states to amend the Constitution to grant Congress the specific power that it needs to regulate public healthcare before establishing Obamacare. It is important to note that the states could have chosen to not grant Congress such power by not ratifying the proposed amendment.

23 posted on 12/04/2013 12:08:10 PM PST by Amendment10
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To: PGR88
At this point, the US Government could not care less about any contradictions or over-reaches in the law. The law is effectively meaningless - its the results they are after and it is full-steam ahead.

It's sort of surprising how many people, who one would expect to otherwise know better, are unaware that we live in a post-constitutional society. Included in this group are law professors who are seemingly under the impression that specific language governs law, and not the other way around.

I had a good time briefly discussing this point with an earnest "impeach Obama" volunteer the other day. Few realize that in a real representative democracy, a low IQ, drug addled loser would not be president. Ergo, his presence is indicative of something larger.

Fattening people up on junk food prepares them for health care expenditures that can be used to drive the national debt even higher. It always, always points back to perpetually increasing the debt.

24 posted on 12/04/2013 12:11:59 PM PST by semantic
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To: Hostage

The law authorizes “premium assistance” - tax credits and subsidies - in state-run exchanges (Section 1311) but not federal ones (Section 1321)

http://online.wsj.com/news/articles/SB10001424052970203687504577006322431330662

http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html


25 posted on 12/04/2013 12:17:29 PM PST by Ray76
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To: EBH

Bookmark!!!!


26 posted on 12/04/2013 12:21:35 PM PST by fwdude ( You cannot compromise with that which you must defeat.)
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To: Amendment10; EBH

What are the chances for a successful repeal??


27 posted on 12/04/2013 12:22:14 PM PST by Las Vegas Dave (The democRATic party preys on the ignorant..!)
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To: Don Corleone

Obamacare is like Prohibition—looks good on paper but just can’t work. It will go the way of Prohibition as well.


28 posted on 12/04/2013 12:23:23 PM PST by Forward the Light Brigade (Into the Jaws of H*ll)
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To: Nifster

I’m starting to think that maybe we should be thankful for the Roberts ruling. Think about where we might be today if he ruled the other way and the law was shut down.

The press and Dems would be blaming the downfall of Obamacare on a conservative judge and that the country is being deprived of what would have been a magnificent reform on the healthcare system.

Dems would be poised to take back the House in 2014. Harry Reid could use the nuclear option for all Senate business. Hillary would be a lock for 2016.

Maybe Roberts did us a favor.


29 posted on 12/04/2013 12:24:43 PM PST by Oldhunk
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To: Don Corleone
The law is what Jarrett and Obama say it is. Maybe even just Jarrett. We have no SCOTUS or Legislative branches any more.

Yup. That is the part that people here seem to be having a hard time getting their heads around. They simply can't grasp that rule of law has been overthrown.
30 posted on 12/04/2013 12:26:52 PM PST by fr_freak
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To: EBH
Adler, a case law professor since 2001, pored over the ACA

He's probably the only person in the world to have read it.

31 posted on 12/04/2013 12:26:52 PM PST by Moonman62 (The US has become a government with a country, rather than a country with a government.)
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To: Oldhunk
Maybe Roberts did us a favor.

People were saying he did a us a favor for 2012. It didn't work out that way.

32 posted on 12/04/2013 12:28:52 PM PST by Moonman62 (The US has become a government with a country, rather than a country with a government.)
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To: Ray76

So I expect that the counterargument will be that there ARE state exchanges. 50 of them (plus DC, etc). Some are run by the FedGov, others by the states. But while there is healthcare.gov it’s just a portal and not a consolidated Federal Exchange.

If I read those sections of law correctly, then Obamacare spent talk about a common Federal exchange, but does differentiate between state run state exchanges and federally run state exchanges. IOW the system that currently exists.

Which means that this professor actually has a point. And a damn good one ...


33 posted on 12/04/2013 12:42:09 PM PST by tanknetter
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To: Oldhunk

simple answer is no he didn’t do us any favors…. he sold out and his delirious ruling proves the point


34 posted on 12/04/2013 12:44:09 PM PST by Nifster
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To: EBH

A mere glitch in the law.


35 posted on 12/04/2013 12:44:15 PM PST by kaehurowing
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To: EBH

I think there is a provision in Obamacare that allows Obama to unilaterally ignore, reinterpret, or amend any provision in the law.


36 posted on 12/04/2013 12:45:02 PM PST by kaehurowing
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To: Oldhunk
Maybe Roberts did us a favor.

No, because the mandate is unconstitutional. A Supreme Court Justice is not supposed to be a super-legislator.
37 posted on 12/04/2013 12:48:52 PM PST by Dr. Sivana (There's no salvation in politics.)
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To: Oldhunk
Maybe Roberts did us a favor.

I've always wondered that myself. I would like to believe so, but no human is wise enough to can plan the cascade of events and consequences as they play out months and years in the future.

38 posted on 12/04/2013 12:48:58 PM PST by PGR88
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To: tanknetter

I’m still studying it.

I’m beginning to think that the “law” is a program... an algorithm. What triggered this thought is Sec 1311(f)1 discussing “interstate exchanges”. Step 1 of the algorithm is destruction of the current system. This is occurring now. Step 2 is the “evolution” of exchanges to regional/interstate exchanges, to “solve” the problems caused by Step 1. The third and final step being the further evolution to a single national exchange.

Just a suspicion at this point.


39 posted on 12/04/2013 1:04:43 PM PST by Ray76
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To: PGR88

The authors may have planned the cascade of events and consequences.


40 posted on 12/04/2013 1:07:34 PM PST by Ray76
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To: Amendment10
The states have never delegated to Congress, via the Constitution, the specific power to regulate, tax and spend for public healthcare purposes.

So where does that leave the FDA? the CDC?

I think the challenge based on the Origination Clause has a much better chance. Unlike Congress's power to legislate in the area of health care, there is not a lot of precedent wherein the Court has twisted the Constitution to mean what the Progressives want it to mean.

Obamacare is a revenue bill. Revenue bills must originate in the House. Obamacare originated in the Senate, after Dingy Harry did Select All, Delete, Paste, Save As on a House bill entitled the Service Members Home Ownership Tax Act of 2009. Therefore, because Congress didn't pass the law correctly, it must be tossed. The Origination Clause challenge is a do-over opportunity for Roberts. If he were to get it right, the law would simply be gone — regulations, mandate, taxes, and all.

41 posted on 12/04/2013 1:25:22 PM PST by cynwoody
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To: Hostage; All
What will happen is that the illegals who will be legalized will register to vote regardless of citizenship status.

QUINTUPLE BINGO!!!

How else does anybody think CA changed so rapidly from frequently Republican to entirely DemonCrap? The change came a lot faster after the 1986 amnesty than would have happened if the newly legalized illegals had followed normal legal procedure and applied or citizenship with the regular wait. Instead hordes flooded into the state, infested sanctuary cities like LA and San Francisco, and started voting DemonCrap immediately. IOW the DemonCraps and illegals stole CA from its real citizens and America.

42 posted on 12/04/2013 1:27:18 PM PST by libstripper (Asv)
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To: Dr. Sivana

“No, because the mandate is unconstitutional. A Supreme Court Justice is not supposed to be a super-legislator.”

That is probably so, but I still think we might be in a much worse place right now had he ruled correctly. It’ possible that Obamacare will set back big government liberalism for quite some time.


43 posted on 12/04/2013 1:28:48 PM PST by Oldhunk
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To: cynwoody; All
Obamacare is a revenue bill. Revenue bills must originate in the House.

The origination issue is a strong one. For everyone's benefit, here's a direct quote from Article I, Section 7 of the Constitution:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

44 posted on 12/04/2013 1:36:11 PM PST by libstripper (Asv)
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To: BlueStateRightist
I think folks may be giving John Roberts a bad rap. By labeling this a tax, essentially what Roberts did was open up Obozocare for yet another supreme court challenge under article 1, sec. 7 of the origination clause of the constitution.

In fact, Dr. Hotze here in Texas has one such lawsuit making it's way through the courts as we type. Dr. Hotze is challenging Obozocare with a two pronged approach.

First, as mentioned, violation of the origination clause which in essence states that any law that levies a tax MUST originate in the house of representatives. The affordable care act did not.

The other deals with a portion of the 5th amendment because the affordable care act compels employers to pay private health insurance companies for health insurance.

I listened to an interview with Dr. Hotze and his lawyer and was very encouraged. Although it has taken many months for this to go full circle...John Roberts may be smarter than we give him credit for. The supreme court has not ruled on the origination nor 5th amendment previously...leaving Obozocare wide open and vulnerable to be stuck down lock stock and barrel... not simply modified.

Take a look at the links:
http://www.prweb.com/releases/2013/5/prweb10715298.htm

http://drhotze.com/2013/09/supreme-court-to-consider-new-obamacare-case/

45 posted on 12/04/2013 1:51:29 PM PST by servantboy777
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To: PGR88

yep, except it is not the us gmint pulling the strings, it is a coup..and soon they will have to take over militarily or lose, we are reaching the edge..

Obamma mamba jamma lenin khomeini is a traitor, the dems and pubs are tritors for not holding obammma accountable, he is breaking laws and pushing his power towards total overthrow..I can hear his sick butt now, because I care for you and am against those wage earners and wall street sorts I therefore declare myself king for the peoples good..no one will do anything..our country has fallen, all we are waiting for is to be pushed off the cliff.


46 posted on 12/04/2013 1:53:52 PM PST by aces
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To: EBH

Case Western is in Ohio.


47 posted on 12/04/2013 2:12:48 PM PST by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: servantboy777
I think folks may be giving John Roberts a bad rap. By labeling this a tax, essentially what Roberts did was open up Obozocare for yet another supreme court challenge under article 1, sec. 7 of the origination clause of the constitution.

Why force another challenge to the law? Why not simply rule it unconstitutional? What advantage is there to what you say is Roberts' MO?

48 posted on 12/04/2013 2:28:45 PM PST by raybbr (I weep over my sons' future in this Godforsaken country.)
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To: BlueStateRightist
John Roberts will swat this challenge away like it’s a drunken fly.

No, Roberts is the one who made the ruling that makes this suit possible, that a state can't be mandated to have a "state exchange".

49 posted on 12/04/2013 2:30:42 PM PST by Mike Darancette (Do The Math)
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To: PGR88

The Rats don’t give a damned abot the law or the Constitution. Their aim is to fundamentally transform the US into a socialist utopia, i.e. a system withe the elite in charge, forcing their will on the rest of us through a police state.


50 posted on 12/04/2013 2:59:18 PM PST by Blood of Tyrants (From time to time the.tree of liberty must be watered with the blood of tyrants and patriots.)
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