This morning, the U.S. Supreme Court heard oral argument in the case of
King v. Burwell a case in which we filed an amicus brief on December 29, 2014.
It has been five years since Harry Reid rammed Obamacare - the Affordable Care Act ("ACA") - through the U.S. Senate. Congress followed its usual
practice of misnaming laws in an effort to deceive the American People into thinking that they would benefit from what is afoot on Capitol Hill.
In those five years, our firm has filed four amicus curiae briefs challenging Obamacare - the most recent one being in King v. Burwell in the U.S.
Supreme Court. Now, the Court will decide whether IRS regulations granting tax credits under Obamacare are lawful despite the fact that they are
entirely contrary to the text of the law.
The ACA authorized tax credits only for taxpayers who purchase qualified health insurance through an "Exchange" which was established by a state.
However, after ACA was enacted, state legislatures reflected popular opposition to Obamacare, and only 16 states created such Exchanges, despite being
offered federal bribes to do so.
The ACA authorized the Department of Health and Human Services to create Exchanges in those States where the States declined to create them; however,
no tax credits could be given to taxpayers in those States refusing to take the federal carrot. Despite this clear statutory plan, a highly-politicized
IRS determined that the tax credits should be made available to everyone who purchased health insurance from any exchange - regardless of whether it was
established by a State or established by HHS for a State.
The Government views this case as simply a difference of opinions about statutory construction - as to whether an Exchange established by the federal
government for a state is the same as an Exchange established by a State. In truth, the statute is so clear, the question really is: Shall the
statutory text President Obama wanted in 2010 be applied as written, or instead disregarded to conform to what President Obama wants now?
Our amicus brief explained the history of Obamacare to provide the Court a context for the King case. Birthed and enacted into law by a process of
political intrigue and deception, the Obama Administration has adopted a lawless strategy of ACA implementation, unilaterally waiving or delaying various
statutory requirements under the guise of presidential discretion. Contrary to his claim of discretion under his constitutional duty to take care that
the law be faithfully executed, the President has instead exercised an unconstitutional prerogative power, dispensing with explicit, congressionally
imposed deadlines, in violation of the separation of powers principles and ministerial practices contemplated by the Constitution.
The Government claims the law to be ambiguous, triggering the authority of the Internal Revenue Service to "interpret" the law through regulation. To
reach this result, the Government argues that well-established rules of statutory construction -- which we discuss at length in our brief -- should be
ignored. In truth, this is an unconstitutional usurpation of the legislative powers vested by the Constitution solely in Congress.
Driven by politics, the Obama Administration has adopted a strategy to avoid the need for amendment by Congress, because it does not believe Congress
would be as compliant now as it was in 2010. The Government seeks to short-circuit constitutional processes in order to save ACA from any change by
Congress, whose composition is very different from the Congress that barely passed the ACA just five years ago.
If the rule of law is to mean anything, the Supreme Court must not sanction policies promulgated by an unelected bureaucracy - like the IRS - in direct
contradiction of the written text of a duly enacted statute. The ACA provision in question should be interpreted according to the plain meaning of the
statutory text, rather than according to the Humpty-Dumpty approach "words mean what I want them to mean" urged by the Government.
Our prior briefs opposing Obamacare were:
Kenneth T. Cuccinelli, II v. Kathleen Sebelius (April 4, 2011)
(Fourth Circuit)
Kenneth T. Cuccinelli, II v. Kathleen Sebelius (November 3, 2011)
(SCOTUS)
Department of Health and Human Services v. Florida (February 13, 2012)
(SCOTUS)
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