A team of constitutional-law experts filed a brief Monday with the U.S. Supreme Court asking the justices if they are willing to allow President Obama to continue making up the law as he goes.
The brief by the American Center for Law and Justice asks the court to reject IRS regulations that illegally authorize tax subsidies for purchasers of health insurance on federal exchanges.
The case is one of several that could create a massive roadblock for Obamacare. The law is written so that only those who obtain insurance through state-established exchanges qualify for federal subsidies.
But the IRS, in violation of the plain language of the law, has allowed the granting of subsidies to people obtaining insurance through federal exchanges. A reversal could mean a loss of subsidies for participants in 36 states, where consumers would see immediate and massive rate hikes.
The brief charges IRS regulations “are part of the administration’s ongoing efforts to rewrite or suspend portions of [the law], in violation of the separation of powers.”
“This is another example of the executive overreach of the president,” said Jay Sekulow, chief counsel of the ACLJ. “The IRS regulations in place are the most egregious example of the administration’s make-it-up-as-we-go approach to implementing Obamacare.”
The regulations, he said, “eviscerate Obamacare’s goal of encouraging state participation and promote the federalization of this nation’s health care in direct contravention of Congress’ intent.”
“This violates the separation of powers, and we are urging the high court to reject this flawed approach.”
The brief states: “In extending tax-subsidies to purchasers of health insurance coverage on federally established exchanges, the IRS regulations rewrite a core provision of the Patient Protection and Affordable Care Act (‘ACA’), without which the law would not have passed, in a direct assault on the separation of powers. Authorizing the expenditure of hundreds of billions of dollars in subsidies, as well as billions in penalties against employers and individuals, the regulations were promulgated with virtually no concern for congressional intent or the plain meaning of § 36B.
“The IRS regulations were promulgated notwithstanding the administration’s own ‘indispensable expert’s’ recognition that the law limited tax subsidies to insurance coverage purchased on state-established exchanges.”
The ACLJ argues there is no evidence Congress wanted to offer subsidies in states that don’t have their own exchange.
“The law must be applied as written. That is vital to democracy. And if the law as written doesn’t work, it must be corrected through a democratic process, not regulatory fiat,” Sekulow said.
The Supreme Court has scheduled oral arguments in the case, King v. Burwell, for March 4.
It was a federal judge in Oklahoma who invalidated IRS rules aimed at making policies affordable for consumers around the country.
U.S. District Judge Ronald White in Muskogee ruled that subsidies, in the form of tax credits, apply only to consumers in the 14 states that have set up insurance marketplaces and not to individuals who buy insurance on the federal marketplace, as in Oklahoma.
An IRS rule says needy customers in both the federal and state marketplaces are eligible for subsidies.
“The court is upholding the act as written,” White said, citing language in the law that limits subsidies to those in states with their own exchanges.
He called the IRS regulations “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”
“Last term alone, this court twice held invalid administrative agency regulations that ignored or exceeded congressional authorization,” the new brief explains.
The IRS working group initially followed the statute when it began drafting regulations, providing subsidies only for insurance coverage purchased in state-established exchanges. In March 2011, however, the IRS working group deleted the language that followed the statutory mandate, the brief explains. Even though “IRS and Treasury officials expressed concern that there was no direct statutory authority to interpret federal exchanges as an ‘exchange established by the state.'”
Another pending claim against Obamacare alleges the law violates the Fourth, Fifth and Ninth Amendment provisions on privacy.
The complaint also cites Articles I, II and III of the Constitution regarding the separation of powers and focuses on two issues: the requirement to buy insurance and the control that will be vested in the Individual Price Advisory Board, a new creation of the federal law that is unanswerable to Congress and unaccountable to the federal courts.
Obamacare “introduces sweeping intrusions into the personal lives of Americans,” the petition explains. “The Act’s linchpin is the ‘individual mandate,’ which forces virtually every American to purchase government-approved health insurance or pay a penalty for refusing to do so.”
The case, brought by the Goldwater Institute, is on behalf of Nick Coons, a small-business owner in Arizona, and Dr. Eric Novack.
WND also reported a lawsuit in federal court charges Obama unilaterally altered the law without approval from Congress, which means it’s no longer legal.
David Yerushalmi, senior counsel for the American Freedom Law Center, said, “In order to keep his broken promises and clean up the political mess he made, President Obama disregarded his constitutional duty to obey the law of the land and flipped Obamacare upside-down without congressional approval.”
AFLC co-founder Robert Muise said the “lawlessness of this administration is breathtaking and dangerous.”
“And the American people are sick and tired of this president’s blatant disregard for the Constitution, so we, as private citizens, are doing something about it,” he said.
Their lawsuit challenging the use of executive orders to change a federal law alleges Obama violated his constitutional duty to “faithfully execute” the law as passed by Congress in 2010.
In its first trip to the Supreme Court, Obamacare was ruled constitutional but only after the justices re-interpreted the “penalties” required by the law as a “tax,” a stance the Obama administration originally argued against.
In its second trip, the justices ruled that a “closely held” for-profit business can opt out of Obamacare’s universal contraception requirement based on religious objections.