Category Archives: Obamacare

Now, even the left is calling on Kagan to recuse herself from hearing Health care case.

Now that the Supreme Court has officially decided to hear the challenge to the constitutionality of the PPACA (Obamacare), the calls for Justice Elena Kagan to recuse herself from the case are flooding in. The issue is whether or not the Justice and former Obama administration Solicitor General through her previous duties, involvement, and expressed opinions, would be able to maintain the appearance of impartiality as required by federal statute. Predictably, these calls have come from pundits and politicians on the right. As noted in a previous post on DTN, Obama Attorney General Eric Holder does not see any reason for Kagan to recuse herself. I was unable to find any direct commentary on this from the president but his spokesman Jay Carney stated that this issue was examined and settled during the nomination process and any further calls to revisit the issue “sure sounds like a political thing”. Of course, Carney’s explanation makes no sense whatsoever, the senate confirmation process is an effort to determine whether or not that body should consent to the appointment of that individual to the court, not to excuse them from recusing themselves from any future case that court may hear. Also, as Fred Lucas of CNS news noted, we now have new evidence in the form of DOJ internal emails that strengthen the case for recusal.

Now a prominent and self-professed liberal and loyal Democrat constitutional professor of law is making the same argument. Eric Segall of Georgia State University College of Law recently made a non-political, fact based case for recusal. First, Segall explains the law as it pertains to judicial recusal;

A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a … counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”

He then goes on to make a brilliant matter of fact case for recusal.

1)  She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted;

2) The ACA is the most important, controversial, and partisan piece of legislation put forward by the Obama administration while Kagan worked as the president’s top lawyer to the Supreme Court. If he didn’t consult with her about it, he should have;

3) She was nominated to the Supreme Court by President Obama shortly after the ACA was passed, and the president is closely and personally identified with the law;

4) She has to review the law just a few months before President Obama runs for re-election;

5) His re-election might well be affected by how the Supreme Court rules; and

6) We know she celebrated the passage of the law.

We know about her celebrating the passage from a recently released email from Kagan to Laurence Tribe, a liberal Harvard constitutional law professor who was also working for the administration at the time the law passed, in which she said, “I hear they have the votes, Larry!! Simply amazing.” The email’s subject line was “fingers and toes crossed today!”

Now CNS is reporting that yet another email is indicating that Kagan was brought into the loop on Mark Levin’s Obamacare complaint. As evidence piles up and calls for recusal from both sides increase, it will be interesting to see if, as Eric Segall asks, Kagan views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes or if she is merely a left-wing ideologue with no regard for the integrity of the court.


Eric Holder’s testimony today reminds me of fishing for striped bass

One of the best ways to catch a big striper (OK, rock fish for you Chessie types) is with a big, juicy live eel.  Getting a big, juicy live eel on a fish hook can be a bit of a challenge and it takes a while to get the knack of it.

Eels are slimy and next to impossible to grasp with the bare hand.  Eels are fast.  Eels are cagey and do not much like having a sharp hook inserted under the jaw and plunged through that jaw and out through an eye.  They’ll fight you every step of the way, will wrap around your wrist and if given a chance, will ball up into your fishing line and within seconds turn the whole rig into a useless piece of junk.

Congressman Lamar Smith of Texas tried to rig up for striped bass fishing today and Eric Holder was in no mood to become bait.  Holder was as slippery as any eel I’ve ever tried to employ and he did his best to wrap himself into the fishing line.

Holder’s last congressional testimony asserted that Elena Kagan never played any role in the Obamacare defense strategy when she was Solicitor General.  This was a eely secretion of slime that was being deployed to prevent her from the hue and cry of people rightly insisting that for her to sit on the Supreme Court decision about the constitutionality of Obamacare would be a conflict of interest and that she should recuse herself. 

Smith tried to get the eel to qualify a timeline, asserting that it would have made no sense for her to not perform her primary job in working as the President’s lead counsel during the formation of the arguments for defending it.

But the eel twisted, slimed, squirmed and wrapped its tail around Smith’s wrist, refusing to get on the hook.

But Smith fought back nobly and inquired about the documentation and personal testimony he’d requested from Justice, insisting that Holder either declare some sort of legal privilege or surrender to his request.

Lamar Smith had the eel in his grasp.  He had the hook in the other hand.  He struggled against the mighty eel, but in the end he hooked the bastard.  Now he can drop in his line and catch the big fish.  

As a man who can not only hook up eels and catch big stripers, I can do it from a kayak. 

I think Lamar can do it from an inner tube.  Nice job, Mr. Smith.


Attorney General Eric Holder spins Elena Kagan’s role in Obamacare

When asked by Senator Mike Lee (R-UT) about Supreme Court Justice Elena Kagan’s involvement in the framing of and defense of Obamacare while she served as Solicitor General, president Obama’s chief legal council throughout the process, Holder makes the statement that not only wasn’t she involved, but when the topic of Obamacare came up she was asked to leave the room.

Carrie Severino over at Judicial Crisis Network lays out the case that not only was Kagan heavily involved in every phase of Obamacare, but she was went to extraordinary measures by involving the office of the Solicitor General in the earliest defense strategy at the lowest levels of the court system.

Because it is so unusual for the Solicitor General’s Office to get involved at the District Court level, not to mention before a law is passed, Kagan’s approval, tacit or explicit, would have been required. The fact that she encouraged her Office’s involvement at such an early stage could only mean that she believed it was necessary to ensure that the strongest possible arguments in defense of the law would be raised at the outset to set the stage for all the appeals that would certainly follow. Her actions had the added effect of communicating to the President and the rest of his Administration that the Solicitor General herself was on top of the legal challenges from the beginning and would not be caught off guard.

Severino goes on to debunk the premise of Holder’s statement. 

During her confirmation hearings, Kagan stated that she was present at “at least one” meeting in which the challenges to PPACA were discussed. But JCN has obtained documents indicating that her involvement was much more substantial than merely attending a single meeting.

So here we go again.  Just like in ‘Fast and Furious’, Eric Holder is either woefully incompetent and ill informed or he is purposefully obfuscating and lying.

No matter.  Either way, it is quite evident that for Elena Kagan to sit in judgement on the Obamacare Supreme Court proceeding is an unacceptable violation of judicial ethics.  She’s been involved with Obamacare throughout the process and again, referring back to Carrie Severino’s excellent article, the answer is obvious.

It requires recusal where the judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” 28 U.S.C. §455(b)(3).

If you prefer the uneditorialized raw video footage of the Lee/Holder exchange without the dulcet tones of Frank Black click below.  Most of it is on Fast and Furious.



Cuccinelli breaks down the 4th Circuit Court ruling of Obamacare mandate challenge

Virginia Attorney General Ken Cuccinelli breaks down the recent ruling by the 4th Circuit Court masterfully in his most recent newsletter..

As you all probably know, we heard from the Fourth Circuit last week in Virginia’s
healthcare lawsuit.

The court decided unanimously to throw the case out on standing and not address the
merits of our constitutional arguments.

However, the story is far more complicated than that.  You may recall that Liberty University’s suit was heard at the very same time as Virginia’s. The court threw that case out as well; however, two of the judges stated
what they would have done on the merits, and that has interesting implications as we press on to the Supreme Court.

Here are the things I’m going to address today:

-The court’s ruling that Virginia lacks standing to bring the lawsuit;

-The implications of the court’s standing ruling for state sovereignty; and

-The extraordinary position of the court as compared with Federalist 51 (you know,
written by that radical guy by the name of James Madison…).

Then I’ll do a quick walk-through of the Liberty ruling, and I’ll explain how itrelates to Virginia’s case.  Finally, I’ll note the three unique aspects of what this court did last Thursday that make the decisions true outliers that need to be corrected.

The Court’s Ruling

Before the federal health care bill became law, Virginia passed the Virginia Health Care Freedom Act (VHCFA).  The VHCFA applies to employers and governments in Virginia and anyone else who might seek to force a Virginian to buy health insurance. With limited exceptions, it provides that no one can mandate that a Virginian buy health insurance.

Along came the federal government and passed the federal health care bill. In that bill was the individual mandate requiring most all citizens to buy federal government-approved health insurance.  The individual
mandate conflicted with the VHCFA, and under the supremacy clause the federal law would trump; however, the supremacy clause does not apply if the federal law is unconstitutional.

Thus was born Virginia’s lawsuit.

We sued the day the President signed the bill – May 23, 2010 – the 235th anniversary of Patrick Henry’s ‘give me liberty, or give me death’ speech.  So began our fight for liberty against the unconstitutional federal mandate.

To bring any lawsuit, a plaintiff must have what is called “standing.” Standing is the right to sue.

To have standing, a plaintiff has to be able to show three things: 1) an injury; 2) that is currently occurring or is certain to occur; and 3) the court must be able to remedy the injury if the plaintiff wins.

Virginia’s injury is that the federal government’s health care law stops Virginia from exercising its legal authority to regulate health insurance mandates using the VHCFA.

This is an injury unique to a state.  You and I don’t have a code of laws.  States do.  And States have the right to
protect their code of laws.  In fact, as attorney general, I have an obligation to protect Virginia’s laws (the district court judge in our case explicitly noted that responsibility).

Our suit was premised on redressing this sovereign injury.  However, the Fourth Circuit rejected our position, stating that, to allow Virginia to bring this suit would allow States to act as “roving constitutional watchdogs”
over the federal government.  And yes, that quote comes straight from the opinion!

We now know what caused the earthquake in Virginia – James Madison obviously saw a
draft version of the final order and rolled over in his grave!

This ruling is an extraordinary assault on state sovereignty and the role for States
envisioned by the Founders in our constitutional system.

If you read Federalist 51 – written by that constitutional radical from Virginia, James Madison – you will find that States are supposed to check federal power when the federal government gets outside its constitutional

Federalist 51:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [federalism], and then the portion allotted to each subdivided among distinct and separate departments [separation of powers].  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.”

How do you suppose the “different governments” are supposed to “control each other?”  Contests of authority are carried out in the federal courts – exactly what we are doing, and directly contrary to the Fourth
Circuit’s opinion! In fact, as the United States Supreme Court noted in 1992 in New York v. United States,

“In 1788, in the course of explaining to the citizens of New York why the recently drafted Constitution provided for federal courts, Alexander Hamilton observed: ‘The erection of a new government, whatever care or wisdom may distinguish the work, cannot fail to originate questions of intricacy and nicety; and these may,
in a particular manner, be expected to flow from the establishment of a constitution founded upon the total or partial incorporation of a number of distinct sovereignties.’ Hamilton’s prediction has proved quite accurate. . . .
While no one disputes the proposition that the Constitution created a Federal Government of limited powers, the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court’s mostdifficult and celebrated cases. At least as far back as Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 324, 4 L. Ed. 97 (1816), the Court has resolved questions ‘of great importance and delicacy’ in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government
or have been retained by the States.”

The Liberty Ruling

Liberty lost its case in the district court in the Western District of Virginia (we were in the Eastern District of Virginia), and so they appealed to the Fourth Circuit.  Their oral argument was the same day and before the same three-judge panel as Virginia’s.

The Liberty plaintiffs were found not to have standing in their case under what is known as the Anti-Injunction Act or “AIA”.  I won’t go into this, but suffice it to say that other judges around the country considered the AIA in
other cases and not one judge anywhere in America found this statute to apply. In fact, even President Obama’s Justice Department conceded in the Fourth Circuit that the AIA did not bar Liberty’s suit.

So,in addition to being the only appeals court to deny a State the authority to defend its own law, they are also the only court in any of the health care cases to find that the AIA applies.  That’s two “unique” conclusions.

The vote to dismiss the case based on the AIA was 2-1.

Normally, when a case is kicked out under the AIA (or on standing), the judges do not comment on the merits of the case.  To do so would violate the long held principle that the federal courts do not issue merely “advisory”
opinions.  However, in Liberty’s case, two judges did comment on the merits.

Judge Davis was the one judge that voted against kicking the case out under theAIA.  He said that he agreed with all of the other judges around the country who had concluded that the AIA did not apply. He then explained how he would have ruled on the merits, indicating he would have found Congress had the power to implement the mandate and penalty under the commerce clause.

It was not unusual for Judge Davis to issue an opinion that discussed the merits. Because he voted not to kick the case out under the AIA, all he was doing was saying how he thought the case should have been resolved.

Despite finding that the case was not properly before the court because of the AIA, Judge Wynn wrote an opinion that also addressed the merits of Liberty’s challenge. This opinion provided the THIRD “unique” aspect of the Fourth Circuit’s health care opinions.  Judge Wynn said that he would have upheld the federal health care law under the taxing power of the constitution.

So far, 16 different judges have addressed this subject and he is the ONLY judge in America to say he would uphold the federal health care law under the taxing power.

This is truly an extraordinary position.  What it means is that Congress can pass a law to tell you to do anything (as long as it doesn’t violate some other part of the constitution like the free speech or double jeopardy clauses),
and as long as they fine you ($$$) if you disobey their command, that fine is an exercise of Congress’ constitutional taxing power and that makes the underlying statutory command constitutional!

Congress could pass a law ordering us all to wear purple on Mondays, pink on Tuesdays,etc. and fine you $50 if you disobey.  And Judge Wynn’s reasoning would say that the $50 fine is an exercise of the taxing power and therefore such a statute was constitutional.


So, we lost in the Fourth Circuit; however, we are working on our appeal right now and will file it as soon as practicable.  And the fact that the Fourth Circuit is utterly alone in three extraordinary aspects of its rulings
leads me to be cautiously confident that the Supreme Court will take a different course regarding all three of those aspects of the Fourth Circuit’s decisions.

I am still cautiously optimistic that the individual mandate will be found unconstitutional by the Supreme Court, and I am hopeful that we will have such a ruling by the end of June of 2012. Whether that happens in our case or in another does not matter so long as the correct constitutional answer is reached.

The federal government will likely try to slow the case down by asking for more time to file its brief in our case and by asking to drag out the appeal in the 11th circuit (where the Florida case with 26 other states wa decided). So it is still possible that this will not be decided before Election Day 2012; however, if you were President Obama, do you really want this being argued in the Supreme Court in October of 2012?  I would think he’d want it disposed of in June 2012 rather than watching a maelstrom of news coverage related to the case on the verge of the election.

Nonetheless, they keep doing everything they can to drag it out.

I will keep you informed!


Ken's Signature

Ken Cuccinelli, II

Attorney General of Virginia


The Post Office is doomed to fail as Obama intervenes to craft a fix.

Remember back in October of 2009 when Obama intervened to bring the Olympic games to his hometown of Chicago =FAIL, or when he personally went to Copenhagen to intervene in the climate summit to inspire the world’s leaders to come to an historic agreement to reduce emmissions = FAIL, or the countless late election interventions for Martha Coakley, Governor Corzine, Creigh Deeds, and Tom Periello = FAIL, FAIL, FAIL, and FAIL.

Well now that the United States Post Office and it’s declining receipts and expanding retirement liabilities is on the brink of default (much like Martha Coakley, their demise is largely self inflicted) it is Obama to the rescue. According to Rueters, our dear leader has pledged to craft a fix. The president wants Congress to delay for 90 days a $5.5 billion retiree health benefits payment due this month so he can carefully work through the details and develop a proposal.

As usual, the Obama administration prefers to wait until this predictable situation reaches a crisis (see Rham Emmanuel) level before addressing this issue leading Senator Susan Collins to complain saying,”I just don’t understand why the administration doesn’t have a concrete plan to put before us today given the dire straits that we’re in”.

Talk show host Mark Levin said it best when commenting on Obama’s reverse Midas touch stating, “whatever Obama touches, turns to crap”. On a day when Gallup released new poll numbers showing that the number of uninsured Americans has increased since the passage of Obamacare, the president has committed the resources of his administration to do for the USPS what they did for Solyndra Inc.


Tim Kaine – Woefully ignorant or deceptively dishonest?

Tim Kaine, the Democrat U.S. Senate candidate, was in Hanover County when P. Henry and I had the opportunity to discuss the merits of the Affordable Care Act (Obamacare) with the former Virginia Governor and DNC Chair. We fully expected that Kaine, with his extensive background and high level connections would be a formidable advocate for the Presidents flagship legislation, instead he came across at best as woefully ignorant and at worst deceptively dishonest.

P. Henry asked the former Richmond Mayor, “if the Affordable Care Act is so affordable why are so many people opting out”, referring to the 1400 waivers from Obamacare that have been issued, including McDonalds and numerous unions. Kaine responded by acknowledging there have been some waivers that the real story is that 7 million companies are taking advantage of the Small Business tax credit provided for by the ACA.Kaine made this claim three times during the interview, the last time after I asked for clarification at the end of the interview. The credit is intended to offset some of the cost of providing health insurance to employees of very small businesses that employ low wage employees, a business must have fewer than 25 full-time workers or the equivalent (the hours worked by part-timers count), pay an average annual wage of less than $50,000 and cover at least half the cost of health insurance premiums for their workers.The credit is phased with credits reduced proportionately for firms with average wages over $25,000.

Kaine’s claim that 7 million businesses were taking advantage of the credit didn’t sound right so we at DTN decided to conduct a fact check and this is what we learned.

1. The IRS sent postcards to 4 million businesses they estimated to be eligible for some level of credit. CNN- Money

2. More than 4 million (4,015,300) small businesses will be eligible to receive a tax credit for the purchase of employee health insurance in 2010. – Families USA and Small Business Majority Study

3. The Small Business and Entrepreneurship Council conducted a poll that showed only 7% of eligible businesses were taking advantage of the credit citing it was too small or complex to bother. – Wall Street Journal

4. Due to the strict criteria, many small businesses can’t take advantage of a tax credit designed to reduce the cost of providing health insurance – Bloomberg Business Week 

It appears that even if every small business eligible for the tax credit was taking advantage of it, Governor Kaine’s 7 million business claim is blatantly false.

Governor Kaine then went on to claim that another positive attribute of the ACA is that now 26 million American kids aged 21 – 26 can stay on their family policies that otherwise would not have been able to without the new law. He went on to say, “So you know an awful lot of kids don’t have their own health insurance yet, through a job or something. So the fact that that means 26 million kids stay on.” Again, we questioned this 26 million figure and this is what we learned.

1.Department of Health and Human Services estimates that approximately 2.37 million young adults will be affected by the new law, out of which 1.83 million are currently uninsured. – NCSL

I don’t think we need to go any farther than that, the HHS as Timmy calls them, has definitively determined that Kaine’s claim that 26 million 21 – 26 year olds have health care insurance who would not, if not for ACA, is blatantly, ridiculously, and incontrovertibly false. 


Dr. Donald Berwick thinks the government should make health care choices for us

The Administrator of the Centers for Medicare and Medicaid Services, Dr. Donald Berwick, recently appeared on CSPAN’s Newsmakers program and claimed that claims of a government takeover of health care is a myth, the government just wants to make choices for us, for our own good. Kudos to Julian Pecquet from the Hill and Noam Levey of the LA Times for asking some pretty objective questions and not the usual main stream media softball questions.


Virginia vs. Obamacare Appeal Argued In Richmond

AFP President Tim Phillips and Tito Munoz lead a rally of  Cuccinelli supporters next to the courthouse in Richmond

A three judge panel from The Eastern Circuit Federal Court of Appeals heard arguments today on two Obamacare lawsuits. Commonwealth of Virginia vs. Sebelius and Liberty University vs. Geithner arguments were heard this morning by two Obama (James A. Wynn, Jr and Andre M. Davis) and one Clinton (Diana Gribbon Motz) appointees.  The Obama administration dispatched acting solicitor general Neal Kumar Katyal to argue both cases on its behalf. Matthew Staver argued for Liberty University and state solicitor general E. Duncan Getchell, Jr. argued for Virginia. 

The panel chose to focus on the merit of the case with Staver and primarily focused on the question of Virginia’s standing to file suit with Getchell. The panel challenged whether Getchell believed the Healthcare Freedom Act, a law passed by a bipartisan General Assembly which prohibits the individual health insurance mandate created standing. Getchell reluctantly agreed that this was indeed his premise but because he didn’t want to harm the position of the plaintiffs in the Florida lawsuit, also believed that the Commonwealth very likely maintained standing without it.

Staver, left with the heavy lifting in arguing the merit of the challenge on the unconstitutionality of the mandate was up to the task. The judges were intent on the question of whether or not opting to not purchase government approved healthcare insurance is an activity. They referenced Wickard and Raiche repeatedly to which the Liberty counselor countered that Wickard did not apply since the federal government did not mandate that Wickard grow or eat wheat. As for the “activity” argument, Staver was brilliant in his response when Judge Davis asked if there should be some judicial formula to define activity.

I think it is critical to having some kind of definable end or understanding of the reach of the commerce clause. If you remove activity as a requirement or as a significant component, then there would be no definable limits on the commerce clause. It would turn the federal government into a police power intruding on to the individual activities of the states and there would literally be no reach or end or limit to what congress could do under Article I.

In any event and regardless of the eventual decision, this is just another mile post on the way to the Supreme Court but it is interesting to hear this liberal panel let their presuppositions leak through like Judge Wynn’s tear jerking hypothetical about four uninsured twenty-something young men from Virginia on a road trip to Maryland have a horrible accident and incur huge medical bills on their way to complete recoveries which not only justifies the necessity of Obamacare but declares that the necessary and proper clause and not the commerce clause may deem it constitutional, he claims that it is unquestionably necessary and the only question is whether or not it is proper.

You can hear the arguments here


Compare and Contrast; Former CBO Head Analyzes Ryan Plan vs. Obama Non-Plan


From The Washington Times

Douglas Holtz-Eakin, American Action Forum, President gives his opinion on President Obama’s and House Republicans’ budget proposals. as well as the political and economic realities in the debate over spending reduction. Holtz-Eakin was a former Director for the Congressional Budget Office from 2003-05. Holtz-Eakin appeared on Cspan Washington Journal on 4/14.

Here Holtz-Eakin discusses the Ryan Plan.

Here he counters the NY Slimes criticism of how the Ryan plan attempts to reform Medicaid/Medicare

Next he gives a very concise analysis of the presidents response to the Ryan plan.

Lastly, the former CBO Director explains why tax increases are not the answer.


Cuccinelli Update on Obamacare Lawsuit

Virginia Attorney General Ken Cuccinelli updated his constituents with his email newsletter and an appearance on Fox News’ Greta Van Sustren program.

Supreme Court

We have asked the Supreme Court to expedite the case under its Rule 11.  They only do this for one or two cases per decade, so don’t bet a lot of money on this one; however, the nature and cost of the healthcare law is the type that they have expedited in the past, so we’ll see what they do.

 We submitted the final brief on expediting this week.  The Supreme Court will consider our request on April 15th. We could see a decision by the Supreme Court as soon as April 18th.

 What does “expediting” mean under Supreme Court Rule 11?  Basically it means to skip the appellate court and go straight to the Supreme Court.

4th Circuit Court of Appeals

At the same time, we are about to submit our first of two briefs in the appellate court.  In their opening brief, the feds made essentially the same arguments that they made in the district court.  And while we adjust our presentation to include elements of other cases, our arguments will be the same as in the district court.

We will argue our case on May 10th before a three judge panel of the 4th Circuit (assuming the Supreme Court does NOT expedite the case, thereby taking it out of the appeals court).  We will not know who those three judges are until the day of the argument.


Get every new post delivered to your Inbox.

Join 446 other followers

%d bloggers like this: