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Tuesday, January 14, 2014

Cruising the Web

Reading the tea leaves from the Supreme Court hearing on the constitutionality of President Obama's recess appointments doesn't augur well for the President's overreach of executive power. And none too soon. Even Ruth Bader Ginsburg seemed a bit skeptical of Obama's attempt to unilaterally declare the Senate in recess despite their not officially going into recess.
The administration was "latching onto" the constitutional provision to combat the Senate's refusal to act, even though it was written to deal with an era when horseback was the fastest mode of transportation and Congress was absent from Washington for long periods, Roberts said.

Even Justice Ruth Bader Ginsburg, perhaps Verrilli's most sympathetic questioner, said at one point, "I think to be candid, the Senate is always available. They can be called back on very short notice."
Since the Constitution explicitly grants each house the ability to make their own rules, I've never seen how the President can usurp that power. As the WSJ writes,
If the President can arbitrarily declare the Senate in recess when it gavelled in the day before, what's to stop him from making recess appointments overnight, or on the weekend, or any other time the Senate is "unavailable" to act on his nominees? Contrary to White House claims that pro-forma sessions are a sham, the Senate conducted business during those days, even passing an extension of the payroll tax cut.

As Justice Anthony Kennedy put it to Mr. Obama's lawyer, Solicitor General Donald Verrilli : "Your argument [that the President can define a recess] is, it seems to me, in search of a limiting principle. A lunch break, a one-day break—you've thought about this—a three-day break, a one-week break, a one-month break. How do you resolve that problem for us?"
If the administration is lucky, all that will be struck down will be the appointments he made despite the Senate not having gone into official recess and the presidency will retain the approach to recess appointments that previous presidents had been able to use. Lyle Denniston of scotusblog.com seems to see a consensus on the Court to strike down those nominations.
A ninety-three-minute hearing on the Constitution’s grant of power to the president to make short-term appointments to fill vacancies was at times a somewhat anxious exploration of whether history or constitutional text should govern the extent of that power. On balance, text seemed to be winning out, and that appeared to favor the Senate more than the White House.

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.
Imagine that - allowing the actual text of the Constitution to define executive power.

However, there is the possibility that the Supreme Court could go further.
There are three questions before the court — whether recess appointments can be made only during the once-a-year break between sessions of Congress, whether the vacancy must occur while the Senate is away in order to be filled during the same break and whether brief, pro forma sessions of the Senate, held every few days to break up a longer Senate hiatus, can prevent the president from making recess appointments.

The latter question offers the court a narrower way to rule on recess appointments.

Verrilli seemed to signal he would rather lose on that question than the first two. But under any circumstance he said, "You really are writing the recess appointments power out of the Constitution," he said.

The importance of recess appointments has dimmed in recent months, since majority Democrats changed the Senate's rules to make it harder for the minority party to block the president's nominees to federal agencies and the courts.
However, if the Supreme Court were to do more to narrow the president's power to make recess appointments, we would see how this president has damaged the power of the executive for future presidents.

Seth J. Chandler, law professor and author of http://acadeathspiral.org/ explains how Obamacare is going to damage small businesses and employees of such businesses may find that their employers are going to cancel their policies.
Small business is thus likely to find itself in the same predicament as individuals, in which cancellation notices abound and immediate answers are unclear or unsatisfactory. For example, if a low-health-cost business purchased a policy that did not cover several of the items required by the ACA, it might find itself forced to choose between a more expensive “better policy” or none at all; and if it does purchase a new policy, it may find itself treated as an average-cost business rather than (correctly) as a low-cost one. While federal tax credits the ACA provides may undo the damage for some small businesses, or even improve their situation, that will not help the hundreds of thousands of small businesses that have too many employees or that pay their employees too much to be eligible for the tax credit. Result: Hundreds of thousands or even millions of small businesses and surely millions of their employees and dependents will have their health-insurance coverage seriously jeopardized.
The Washington Post predicts the same problem and notes that cancellation notices will go out to people in October, right before the election unless, of course, the administration unilaterally decides to postpone those deadlines once again.
Some of the small-business cancellations are occurring because the policies don’t meet the law’s basic coverage requirements. But many are related only indirectly to the law; insurers are trying to move customers to new plans designed to offset the financial and administrative risks associated with the health-care overhaul. As part of that, they are consolidating their plan offerings to maximize profits and streamline how they manage them.

“If they do it one way, the word canceled gets attached to it. If they do it another way, they say they are amending the policy. It sounds more gentle but it’s the same thing,” said Gary Claxton, an expert in private insurance at the Kaiser Family Foundation. “The basic point is, for many people in the small-group market at some point soon their coverage is going to change.”
We're already seeing such cancellations.
In New Jersey, the state’s association of health plans says 650,000 people with small-group coverage have had their plans disrupted. In Colorado, regulators said small-group plans covering 143,000 people are being discontinued in 2014.

In New Hampshire, the state’s largest insurer, Anthem Blue Cross Blue Shield, is moving all of those in its small-group plan — 60,000 to 70, 000 people — to plans that are similar to those sold on the marketplace created by the health-care law. These plans have drawn fire from consumers because they include only 16 of the state’s 26 acute-care hospitals.

In Pennsylvania, Delaware and West Virginia, Highmark Blue Cross Blue Shield is discontinuing all its small-group plans for those who did not renew early, and offering new policies with different coverage and premiums. The company says 99.5 percent of the 5.3 million people it covers through its individual and small-group plans will be affected, but it declined to break out the number under small-group plans for competitive reasons.
I predict pain.

CNN Money explains the squishiness of the administration's claim that 6 million people have gotten insurance through Obamacare since close to two-thirds of that number are getting Medicaid and it's not clear how many of those already have Medicaid.

Kirsten Powers writes powerfully about Christians who are being massacred around the world.

Thomas Sowell excoriates the Obama administration for how they're taking efforts that will worsen education for poor minority students.

Megan McArdle writes why she thinks that it may be unlikely for insurance companies to get the bailout from the government to pay for increased expenses under Obamacare due to complications rising from the website and to worse adverse selection enrollments than anticipated.

Hmmm. What if a future Republican president were to follow President Obama's example in deciding all by himself, regardless of the actual text of the law, to suspend enforcement of Obamacare when it becomes inconvenient?

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