Tuesday, July 29, 2014


       As the Nation lurches towards a potentially debilitating fall election for Obama and his congressional minions, the Democrats find themselves resorting to sordid legal duplicity and political fraud as their best hope to sustain their anti-constitutional tyranny.

       More Lawlessness to Salvage Obamacare.  The U.S. Court of Appeals for the D.C. Circuit recently held that the Affordable Care Act ("ACA," commonly called Obamacare) does not authorize the federal government to pay health insurance premium subsidies for persons who obtained their insurance on the federal exchange rather than on one set up and maintained by the state of their residence. The case was Halbig v. Burwell.  The court rejected the Obama administration's argument that, despite plain language to the contrary -- i.e., that subsidies were available only through exchanges "established by a state" -- the ACA implicitly authorized subsidies for policies obtained through federal exchanges in states that had declined to set up their own exchange.

       Most states (36 of them) declined to set up their own Obamacare exchanges, but the Obama administration went ahead and approved subsidies for persons in those states anyway, despite the absence of statutory authorization. Consequently, the D.C. Circuit ruling is disastrous for Obamacare:  If the government can't pay the premium subsidies in that majority of states, the premiums will become intolerably expensive for some 5 million people, and Obamacare will become effectively insupportable and unsustainable.

            It will surprise no one that Obama's lawless government is continuing to pay the unauthorized premium subsidies despite their illegality.  Another federal appeals court, with a politically stacked panel of three liberal judges appointed by Obama  and Clinton, subsequently upheld the federal exchange subsidies even though the plain language of the ACA provides expressly to the contrary.  The bogus rationale for the Fourth Circuit's ruling in favor of unfettered subsidy authority  is that, the ACA's plain language notwithstanding, prohibiting the subsidies is inconsistent with the expansive purposes of the legislation.  

          Needless to say, the Administration and its followers have mocked the D.C. Circuit's decision's adherence to the actual language of the ACA, claiming that to limit subsidies in the manner specified in the statute makes no sense in light of the legislation's broader purposes of expanding and facilitating coverage. As it has time and time again, the Obama Administration scorns the rule of actual law in favor of whatever executive branch "interpretations" best further its policies and political objectives.

            Set aside for the moment that when a statute's plain language is clear, as it is in the ACA's subsidies authorization, there is no need to delve into the murky and contrived gibberish of so-called congressional intent and legislative history.  The fact is that, far from making "no sense," the absence of an authorization for subsidies in states that declined to set up their own exchanges served a very logical purpose of the bill's backers. And, as explained below, that purpose was well understood by constitutional lawyers and by those involved in the bill's enactment.  In short, the background and context of the ACA reinforces, rather than contradicts, its plain language limiting subsidies to policies obtained through state exchanges.

            Under established constitutional law, Congress cannot simply "commandeer" the States' personnel and resources to administer or enforce a federal program like Obamacare.  It can, however, legitimately pressure the States to do such things by offering federal benefits if they comply, or withholding them if they do not.  In short, the ACA could not directly compel states to establish and run Obamacare exchanges, but it could enact highly persuasive "incentives" to encourage them to do so.

            In the case of the Obamacare, the legislation tried to pressure States to set up their own Obamacare exchanges by withholding premium subsidies for their citizens if a State declined to set up a state exchange.  

           Thus, limiting subsidies to persons who got their insurance on State exchanges was no accident, drafting error, or "typo," as Obama's acolytes have dishonestly argued in criticizing the D.C. Circuit ruling. Rather, it was a deliberate legislative strategy designed to comply with a specific rule of constitutional law, the so-called "anti-commandeering doctrine.  The contemporaneous statements of the administration's leading expert on the ACA legislation clearly confirms this inescapable fact.

            All of this is clear to any honest lawyer with a basic grasp of the governing rules of constitutional federalism.  The problem, however, is that many of the judges, and at least four of the justices, who will ultimately decide this issue are not honest lawyers, but ideologically corrupt pettifoggers whose decisions are governed by the leftist imperatives of the Obama administration rather than by the text of the law or the Constitution.  The D.C. Circuit panel's honest and sensible decision in the Halbig case is apt to be overturned if and when, as expected, it is reviewed by the court's full en banc complement of 11 judges -- recently packed by Obama to provide a 7-4 majority of leftist Democratic judges.

            Ultimately, the main hope for a just resolution of this issue is that at least five Justices of the Supreme Court will be willing to stand up for the rule of written law and the integrity of constitutional government, as opposed to the arbitrary political dictates of the Obama administration and the lawless congressional Democrats.

            The Democrats' Insidious "Impeachment" Fundraising Scam.   It is no longer possible to overstate the deranged political depravity of the Democrat Party under Obama's leadership.  

            Angry and desperate due to strong indications that they face a major defeat, and possible loss of control of the Senate, in the coming congressional elections, there is no subterfuge or smear that they will not employ to salvage their prospects.  The Democrats are now frantically waving the bloody shirt of presidential impeachment in the hopes of triggering an angry voter reaction against congressional Republicans -- who would much sooner submit themselves to prolonged waterboarding than initiate that desperate and politically poisonous constitutional procedure.

            Over the past several weeks, a few Republicans and conservatives, the most prominent being Sarah Palin, have opined that Obama's persistent unconstitutional abuses of executive power are so extreme as to warrant impeachment (which, contrary to a common misunderstanding, does not cause removal from office, but merely triggers a trial in the Senate to consider that remedy).  Although these views are quite valid in substance, anyone with the least grasp of contemporary U.S. politics knows that the American electorate has no stomach for an intensely divisive impeachment spectacle -- as proven by the enormous political boost that the lecherous and perjured Clinton presidency received from his actual impeachment.

            Democratic political operatives are acutely aware that they are doomed to defeat in the 2014 congressional elections if they turn on substantive issues such as the disasters of Obamacare, the collapse of the Nation's southern border and resultant Invasion of the Illegals, or the Administration's multi-front foreign policy debacles.  Their only hope to avoid a major election disaster is to create a sensational political red herring that will divert the voters' attention from those real issues and focus it on whatever contrived outrage they can frame to discredit the Republicans and their candidates.

            The red herring they have settled upon for that purpose is the completely fictitious prospect of a movement by congressional Republicans to impeach Obama and have him tried and removed from office by the Senate.

            Needless to say, the prospect of impeaching Obama has been emphatically rejected by the actual Republican leadership in Congress, most recently in a strong statement by Speaker of the House John Boehner  (http://washingtonexaminer.com/why-john-boehner-called-impeachment-talk-a-scam/article/2551395).  As Mr. Boehner stated, "This whole talk about impeachment is coming from the president's own staff -- and coming from Democrats on Capitol Hill. Why? Because they're trying to rally their people to give money and show up in this year's election."  He then underscored the Republican position:  "We have no plans to impeach the president; we have no future plans.  Listen, it's all a scam started by Democrats at the White House."

            Wholly apart from whether Obama's serial malfeasance theoretically warrants impeachment -- and in a sane political environment, it would -- it is obvious that the Republicans' emphatic rejection of that prospect is entirely sincere.  Republican prospects for a successful election in the fall, including gaining control of the Senate, are very strong.  So exposing themselves to charges that they are divisive extremists by resurrecting the deeply unpopular impeachment procedure is the last thing Republicans would want to do.  As a result, neither the Republican congressional  leadership, the party leadership, nor any influential Republican congressional candidates are calling for House consideration of impeachment, let alone advocating it.

            In complete contrast, the Democrat campaign apparatus have pounced on impeachment as their favorite issue.  Their fundraising letters, their speeches, and the programs and articles put forth by their puppets in the media are obsessed with stoking the flames of a Republican impeachment movement which exists only in their deranged and fevered political fantasies.  In short, the purely fictitious prospect of Obama's impeachment is the Democrats' favorite hashtag and flavor-of-the-month, and they cannot talk about it enough.

            It is a depressing commentary on the depths to which the Obama Democrats have descended that the best issue they can generate as the centerpiece for an important national election is the entirely contrived prospect of impeachment that is sustained and stoked by their own propaganda.

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