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THE TWO LAWSUITS THAT COULD DESTROY OBAMACARE

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Two weeks after acknowledging it had no legal authority to do this, the Obama administration announced Tuesday (3/25) it will permit people to sign up for Obamacare after the March 31st deadline set in the law.

"A government of laws, not men," was how John Adams described what most distinguished the republic the Founding Fathers created from virtually every other government in the history of the world.

Most governments in most places had been despotisms, where the powerful exercised power capriciously at the expense of the multitudes.

American would be different.

"The most sacred of the duties of a government [is] to do equal and impartial justice to all citizens," said Thomas Jefferson.

"Equal laws protecting equal rights – the best guarantee of loyalty and love of country," said James Madison.

"The ordaining of laws in favor of one part of the nation, to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy," said Benjamin Franklin. "An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to, and ought to enjoy."

But it’s been tough sledding for equal protection of the laws these last five years.

The president alters at his whim laws passed by Congress, exempting some, but not others, from Obamacare provisions.

His attorney general won’t prosecute civil rights offenses — if the victims are white.

Pennsylvania’s attorney general won’t prosecute bribe-taking politicians — if they are black.

The scofflaws could be reined in — if plaintiffs prevail in lawsuits which got hearings in courts in Washington D.C. last week.

The Supreme Court heard oral arguments March 25 on a suit by small business owners in Oklahoma and Pennsylvania led by Hobby Lobby who say the Obamacare provision which requires them to include abortion-inducing drugs in health plans for their employees violates their freedom of religion.

A few blocks away on the same day, a three judge panel in the U.S. Court of Appeals heard arguments in Halbig v. Sebelius, a suit arguing premium subsidies may be paid only to people who sign up for health insurance on state exchanges.

Plaintiffs likely will prevail in both cases, court observers think.

"This was a train wreck for the Obama administration," said CNN legal analyst Jeffrey Toobin after listening to the arguments in the Supreme Court on the Hobby Lobby case. "This law looks like it’s going to be struck down. All of the predictions including mine that the justices would not have a problem with this law were wrong."

The questions they asked indicated swing voter Justice Anthony Kennedy, and perhaps liberal Justice Steven Breyer would join the four conservatives to overturn the provision.

"It sure looks like the contraception mandate is doomed," said Dahlia Lithwick in Slate.

The Supreme Court hearing garnered the most attention from the news media, but it’s the suit brought by Jacqueline Halbig which could doom Obamacare.

The Obamacare law provides that subsidies will be available to people who purchase health insurance in an exchange "established by the state." The IRS issued a rule saying people who sign up for Obamacare on Healthcare.gov, the federal web site, could get subsidies too.

The IRS has no authority to do that, argue Ms. Halbig, a health care adviser during the Bush administration, and state attorneys general in Oklahoma and Indiana, who’ve filed suit in other courts. The plain meaning of the words of the law is that only those who buy health insurance on state exchanges are eligible for subsidies.

This is a very big deal, because only 16 states have set up exchanges, and the exchanges in Oregon, Hawaii, Maryland and Minnesota have been bungled so badly not many have signed up on them.

More than twice as many Americans say they’ve been hurt by Obamacare as say they’ve benefited from it, polls indicate. If Halbig prevails, the number of beneficiaries will plummet.

That was just a drafting error, the administration argues. Congress intended that people who buy insurance on federal exchanges should get subsidies too.

If this were true, it would be a weak argument, because under the Constitution, only Congress has the right to correct "drafting errors" in the laws it passes.

But it isn’t. The eligibility rules for "premium-assistance tax credits" are referenced 9 times in the law, noted Michael Cannon of the CATO Institute. They were put in it at the insistence of Sen. Ben Nelson, D-Neb, the legislative history makes clear.  Nelson wouldn’t have voted for Obamacare without them.

"By dispensing subsidies through federal exchanges, the IRS will spend tax revenues without congressional authorization," said columnist George Will. "And by enforcing the employer mandate in states that have only federal exchanges, it will collect taxes without congressional authorization."

A district court judge ruled against Halbig, but the appeals court panel seems poised to find in her favor. For some judges, the administration’s frantic, frequent and illegal alterations of the Obamacare law may be the last straw.

The administration is trying to cover up for how poorly the Obamacare law was written, and how badly it’s being administered, said Judge A. Raymond Randolph.

"If the law is just stupid, I don’t think it’s up to the court to save it," he said.

Fear of impending defeat "explains why the Administration is suddenly claiming that the appeals court lacks the jurisdiction to invalidate its interpretation of ObamaCare," said the Wall Street Journal.

"The Justice Department submitted a so-called 28(J) letter, declaring that because Halbig is not a class action, any adverse ruling only applies to the named plaintiffs.

"In other words, even if the court finds that the Administration is acting illegally, it cannot strike down the IRS-HHS rule and the executive branch will continue to ignore both Congress’s law and the law of the courts."

"There are few if any precedents for such a remarkable argument," the Wall Street Journal noted.

The Justice Department’s move  is "confirmation we are in the midst of a constitutional crisis," Oklahoma Attorney General Scott Pruitt told National Review’s John Fund. "When an administration can ignore the plain language of a law, insist on the opposite, and then assert the courts can’t overrule them, that is an assault on our very system."

The appeals court panel won’t have the last word. If, as expected, it rules for the plaintiffs, the administration  could appeal  for an en banc hearing by 11 of the 17 judges who are not on "senior" status (partially retired), or ask for expedited consideration by the Supreme Court.

Two of the three judges on the panel were appointed by Republicans.  So were 9 of the entire 17. But 7 of the 11 not on senior status were appointed by Democrats – 4 by President Obama.

The DC Circuit frowns upon en banc hearings, but Mr. Fund expects the administration to ask for one to keep the case away from the Supreme Court a little longer.

The Supreme Court is expected to rule on the Hobby Lobby case in June.  It couldn’t take up Halbig before its October term.  But if the Supremes were  to rule in favor of Halbig then, it would be curtains not just for Obamacare, but for a host of the Democrats who’ll be on the ballot the following month.

Jack Kelly is a former Marine and Green Beret and a former deputy assistant secretary of the Air Force in the Reagan administration. He is national security writer for the Pittsburgh Post-Gazette.

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