Blog

Some of the more striking comments during the President’s news conference focused on the manner in which his administration is changing policies, and reacting to problems.

Chuck Todd posed an important question.

Q: Thank you, Mr. President. And merry Christmas, and happy new year. You’ve talked about the issues with health care and the website rollout, but there have been other issues, the misinformation about people keeping their policies, the extended deadlines, some postponements. We have a new waiver that HHS announced last night. How do you expect Americans to have confidence and certainty in this law if you keep changing it? This one here, this new waiver last night — could argue you might as well have just delayed the mandate.

By constantly delaying deadlines, and exempting people at random, you undercut confidence in the rule of law. As I noted earlier, no one will pay the mandate now. Why would you, if there’s a good chance HHS will issue a blog post and announce, like the business mandate, no one is liable to pay for it.

The President’s answers are telling. After repeating the standard lines about how kids can stay on their parents’ plan till the age of 26, etc., he offered some useful insights into his philosophy on governance.

You’re making a broader point that — that I think is fair.

And that is that in a big project like this, that what we are constantly doing is looking — is this working the way it’s supposed to, and if there are adjustments that can be made to smooth out the transition, we should make them.

…

Now, in putting something like this together, there are going to be all kinds of problems that crop up, some of which may have been unanticipated. And what we’ve been trying to do is just respond to them in a common-sense way, and we’re going to continue to try to do that.

There’s nothing wrong with government making “adjustments” to problems in a “common sense” way. But the manner in which his government is doing so is frankly scary. All of the problems we have encountered so far should have been foreseen well in advance–especially by agencies that were warned of these problems. But, due to nothing more than political expendiency, fixes have been glommed on at the last minute, without any notice.

People at HHS knew that the web site would not be ready months in advance. Delay it? Of course not. Tell the President? No need. Launch it when it is woefully unable to work! Sure!

The government knew people would have their policies cancelled. Tell them about? No, that would harm the passage of the law? Warn them after it was passed? Nah, people need to get covered. Lie about it and tell them they can keep their policies? Sure!

The government realizes that people who had their policies were cancelled were upset in November. Allow them an exemption from the mandate? No, that would make the law crumble. “Urge” the insurance companies to renew cancelled policies, with almost no notice? Sure–that way it’s the insurance companies fault if they don’t get signed up.

When the previous “adjustment” doesn’t work, and the government realized they would never get enough people to sign up by Dec. 23, and it would be politically unpopular to penalize them? Delay Obamacare a year in October? Nah, that’s what Crazy Cruz wanted. Offer people exemptions in November? Nah, don’t want to ruin Thanksgiving! Write a blog post on December 19, a few days before Christmas, asking people who had their policies cancelled to mail a form to London, Kentucky requesting a hardship exemption? Sure!

A new crisis will emerge when not enough people sign up, and the risk pools are not diversified enough. So, I’m sure, at the last minute, maybe in a Tweet from @Sebelius, the President will announce that *no one* is subject to the mandate this year.

And what is even more stunning, is that the President said the “adjustments” he has made do not “go to the core of the law.”

But they don’t go to the core of the law. First of all, the core of the law is, is that for 85 percent of the population, all they’ve been getting is free preventive care, better consumer protections, the ability to keep their kids on their insurance plan till they’re 26, thousand-dollar or $500 discounts on prescription drugs for seniors on Medicare. So 85 percent of the population, whether they know it or not, over the last three years have benefited from a whole set of the provisions of the law.

 

That is sophistry.  The mandate, literally, is the “core” of the law. Your Solicitor General told that to the Supreme Court. Without the mandate, the entire law crumbles. Is there any kind of executive estoppel here? The only reason why the ACA offers these “free benefits” is that uninsured people pay the mandate penalty, or pay insurance, and contribute to the risk pool. He has to know better than this.

Government doesn’t work by making adjustments on the fly. This is literally “improvisational government.”

As Todd’s question ended, he inquired about the mandate.

Q: But the mandate will be enforced — (off mic) —

PRESIDENT OBAMA: Absolutely, yeah.

Mandate? What Mandate?

These aren’t forms of idle speculation. Lawless governance, and changing things up on the fly, erodes the public trust. See this question from Julie Pace:

Q: But sir, it’s not just your legislative agenda. When you look at — (off mic) — you talk to Americans, they seem to have lost confidence in you, trust in you. Your credibility have taken a hit. Obviously, the health care law was a big part of that. So do you understand that those — that the public has changed, in some way, their view of you over this year?

The President’s answers focused on polling, which missed the point. You can’t trust, and rely on a government that changes on a whim. Why would anyone be dumb enough to buy insurance if they expect to be exempted from the mandate in a few months?

On a selfish note, the President’s recklessness has done a major disservice to progressivism. Let’s see any other President urge that a big government program will fix societal problems. He has eroded serious trust in the progressive experiment. I queried whether liberalism can survive Obama. Certainly, but it will be much, much weaker.

Perhaps the President’s “Mission Accomplished” line will be this:

The basic structure of that law is working, despite all the problems.

This reminds me of John McCain’s, “the fundamentals of our economy are strong” line in 2008.

The President received several questions on Obamacare during his press conference. Here are the highlights.

The most interesting exchange came from Chuck Todd, which focused on last night’s “waiver.”

Chuck Todd.

Q: Thank you, Mr. President. And merry Christmas, and happy new year. You’ve talked about the issues with health care and the website rollout, but there have been other issues, the misinformation about people keeping their policies, the extended deadlines, some postponements. We have a new waiver that HHS announced last night. How do you expect Americans to have confidence and certainty in this law if you keep changing it? This one here, this new waiver last night — could argue you might as well have just delayed the mandate.

PRESIDENT OBAMA: Well, no, that’s not true because what we’re talking about is a very specific population that received cancelation notices from insurance companies. The majority of them are either keeping their old plan because the grandfather clause has been extended further or they’re finding a better deal in the marketplace with better insurance or cheaper costs. But there may still be a subset, a significantly smaller subset than some of the numbers that have been advertised, that are still looking for options, are still concerned about what they’re going to be doing next year. And we just wanted to make sure that the hardship provision that was already existing in the law would also potentially apply to somebody who had problems during this transition period. So that’s the specifics of this latest change.

Of course the problems–higher premiums and inability to signup, are the direct results of Obamacare.

You’re making a broader point that — that I think is fair.

And that is that in a big project like this, that what we are constantly doing is looking — is this working the way it’s supposed to, and if there are adjustments that can be made to smooth out the transition, we should make them.

Adjustments? Government doesn’t work by making adjustments on the fly. This is literally “improvisational government.” We have the rule of law to limit arbitrary whims.

But they don’t go to the core of the law. First of all, the core of the law is, is that for 85 percent of the population, all they’ve been getting is free preventive care, better consumer protections, the ability to keep their kids on their insurance plan till they’re 26, thousand-dollar or $500 discounts on prescription drugs for seniors on Medicare. So 85 percent of the population, whether they know it or not, over the last three years have benefited from a whole set of the provisions of the law.

No! No! No! The mandate, literally, is the “core” of the law. Your Solicitor General told that to the Supreme Court. This is remarkable sophistry. The only reason why pajama boy can stay on his parent’s plan while he sips hot cocoa is because people who have jobs pay the mandate penalty, or pay insurance, and contribute to the risk pool. He has to know better than this.

And by the way, if it were to be repealed, you would be taking away all those benefits from — from folks who already are enjoying them.

If the mandate goes away, and we enter a death spiral, pajama boy staying on his policy is the least of our worries.

You have this subportion of the population, 15 percent, who either don’t have health insurance or are buying it on the individual market. And that’s still millions of people. And what we’re doing is creating a marketplace where they can buy insurance, and we can provide them some tax credits to help them afford it.

The basic structure of that law is working, despite all the problems.

This reminds me of John McCain’s, “the fundamentals of our economy are strong” line in 2008.

Despite the website problems, despite the messaging problems, despite all that, it’s working. And again, you don’t have to take my word for it. We’ve got a couple million people who are going to have health insurance just in the first three months, despite the fact that probably the first month and a half was lost because of problems with the website and about as bad a bunch of publicity as you could imagine.

And yet, you’ve still got 2 million people who signed up — or more. And so, what that means, then, is that the demand is there, and as I said before, the product is good.

Now, in putting something like this together, there are going to be all kinds of problems that crop up, some of which may have been unanticipated. And what we’ve been trying to do is just respond to them in a common-sense way, and we’re going to continue to try to do that.

Again, they are responding to problems in a totally ad hoc, random way. This is not “common-sense.”

But that doesn’t negate the fact that, you know, a year from now or two years from now, when we look back, we’re going to be able to say that even more people have health insurance who didn’t have it before.

And that’s not a bad thing; that’s a good thing. That is part of the reason why I pushed so hard to get this law done in the first place. And — you know, I’ve said before that this is a messy process. And I think, sometimes, when I say that, people say, well, A, yeah, it’s real messy, and B, you know, isn’t — isn’t the fact that it’s been so messy some indication that there are more fundamental problems with the law?

And I guess what I’d say to that, Chuck, is, when you try to do something this big affecting this many people, it’s going to be hard. And every instance — whether it’s Social Security, Medicare, the prescription drug plan under President Bush — there hasn’t been an instance where you’ve tried to really have an impact on the American peoples’ lives and well-being, particularly in the health care arena where you don’t end up having some of these challenges.

But here the challenges are *caused* by the law, and the arbitrary manner in which the Administration has attempted to “fix” it.

The question is going to be, ultimately, do we make good decisions trying to help as many people as possible in as efficient a way as possible? And I think that’s what we’re doing.

Todd specifically asked about the fact that the President is now urging people who had policies cancelled to sign up for the catastrophic-care plans–plans a few days ago he disparaged!

Q: But with 72 hours to go, you make this change where people are buying the junk — frankly, a junk-type policy that you weren’t — you were trying to get people away from.

PRESIDENT OBAMA: Well, do keep in mind, Chuck, first of all, that the majority of folks are going to have different options. This is essentially an additional net in case folks might have slipped through the cracks.

They didn’t slip through the cracks. Obamacare cancelled their old policies, and Obamacare caused new policies to be too expensive.

We don’t have precision on those numbers, but we expect it’s going to be a relatively small number because these are folks who want insurance, and the vast majority of them have good options. And in a state like North Carolina, for example, the overwhelming majority of them have just kept their own plans, so — the ones that they had previously.

But we thought and continue to think that it makes sense that as we are transitioning to a system in which insurance standards are higher, people don’t have unpleasant surprises because they thought they had insurance until they hit a limit, and next thing you know they still owe a hundred thousand or 200(,000 dollars) or $300,000 for a hospital visit, that as we transition to higher standards, better insurance, that we also address folks who get caught in that transition and their unintended consequences.

And I’ll — that was the original intent of the grandfather clause that was in the law. Obviously, the problem was it didn’t catch enough people.

Through regulations, HHS narrowed the grandfather clause. This wasn’t an accident. The plan was to push people off their plans.

And you know, we learned from that, and we’re trying not to repeat those mistakes.

Q: But the mandate will be enforced — (off mic) —

PRESIDENT OBAMA: Absolutely, yeah.

Mandate? What Mandate?

Also, a question from Julie Pace about whether people should trust the President:

PRESIDENT OBAMA: Julie Pace of AP.

Q: Thank you, Mr. President. Despite all of the data points that you cited in your opening statement, when you look back at this year, very little of the domestic agenda that you outlined in your inaugural address, in your State of the Union has been achieved. Health care rollout obviously had huge problems, and your ratings from the public are near historic lows for you. When you take this all together, has this been the worst year of your presidency?

PRESIDENT OBAMA: (Chuckles.) I — I got to tell you, Julie, that’s not how I think about it. I have now been in office five years, close to five years, was running for president for two years before that, and for those who’ve covered me during that time, we have had ups and we have had downs. I think this room has probably recorded at least 15 near-death experiences.

And what I’ve been focused on each and every day is, are we moving the ball in helping the American people, families, have more opportunity, have a little more security, to feel as if, if they work hard, they can get ahead.

And if — if I look at this past year, there are areas where there obviously have been some frustrations, where I wish Congress had moved more aggressively. You know, not passing background checks in the wake of Newtown is something that I continue to believe was a mistake.

But then I also look at, because of the debate that occurred, all the work that’s been done at the state levels, to increase gun safety and to make sure that we don’t see tragedies like that happen again.

There’s a lot of focus on legislative activity at the congressional level. But even when Congress doesn’t move on things they should move on, there are a whole bunch of things that we’re still doing. So we don’t always get attention for it, but the ConnectED program that we announced, where we’re going to be initiating wireless capacity in every classroom in America, will make a huge difference for kids all across this country and for teachers; a manufacturing hub that we set up in Youngstown, something that I talked about during the State of the Union, is going to create innovation and connect universities, manufacturers, job training, to help create a renaissance — build on the renaissance that we’re seeing in manufacturing.

When it comes to energy, this year is going to be the first year in a very long time where we’re producing more oil and natural gas here in this country than we’re importing. That’s a big deal.

So I understand the point that you’re getting at, Julie, which is that a lot of our legislative initiatives in Congress have not moved forward as rapidly as I’d like. I completely understand that, which means that I’m going to keep at it. And if you look at, for example, immigration reform, probably the biggest thing that I wanted to get done this year, we saw progress. It passed the Senate with a strong bipartisan vote.

There are indications in the House that even though it did not get completed this year, that there is a commitment on the part of this speaker to try to move forward legislation early next year. And the fact that it didn’t hit the timeline that I’d prefer is obviously frustrating, but it’s not something that I end up brooding a lot about.

Q: But sir, it’s not just your legislative agenda. When you look at — (off mic) — you talk to Americans, they seem to have lost confidence in you, trust in you. Your credibility have taken a hit. Obviously, the health care law was a big part of that. So do you understand that those — that the public has changed, in some way, their view of you over this year?

PRESIDENT OBAMA: But Julie, I guess what I’m saying is, if you’re measuring this by polls, my polls have gone up and down a lot through the course of my career. I mean, if I was interested in polling, I wouldn’t have run for president. I was polling at 70 percent was — when I was in the U.S. Senate. I took this job to deliver for the American people, and I knew and will continue to know that there are going to be ups and downs on it.

You’re right. The health care website problems were a source of great frustration. I think in the last press conference I adequately discussed my frustrations on those. On the other hand, since that time I now have a couple million people, maybe more, who are going to have health care on January 1st. And that is a big deal. That’s why I ran for this office. And as long as I’ve got an opportunity every single day to make sure that in ways large and small I’m creating greater opportunity for people, more kids are able to go to school, get the education they need, more families are able to stabilize their finances, you know, the housing market is continuing to improve, people feel like their wages maybe are inching up a little bit — if those things are happening, I’ll take it.

And you know, I’ve said before, I’ve run my last political race. So at this point, my goal every single day is just to make sure that I can look back and say we’re delivering something, not everything, because this is a long haul.

Also a related question from Jon Karl:

Jon Karl.

Q: Thank you, Mr. President. It’s been a tough year. You may not want to call it the worst year of your presidency, but it’s clearly been a tough year. The polls have gone up and down, but they are at a low point right now. So what I’m asking you — you’ve acknowledged the difficulties with the health care rollout. But when you look back and you look at the decisions that you have made and what you did, what you didn’t do, for you personally, what do you think has been your biggest mistake?

PRESIDENT OBAMA: With respect to health care specifically or just generally?

Q: The whole thing, look back at this tough year.

PRESIDENT OBAMA:Well, there’s no doubt that — that when it — when it came to the health care rollout, even though I was meeting every other week or every three weeks with folks and emphasizing how important it was that consumers had a good experience, an easy experience in getting the information they need and knowing what the choices and options were for them to be able to get high-quality, affordable health care, the fact is it didn’t happen in the first month, the first six weeks, in a way that was at all acceptable. And since I’m in charge, obviously, we screwed it up.

I’ll inject for a moment. Notice the change of pronouns. “I’m in charge.” Then, “we screwed up.” If you get a chance, read the book, “The Secret Life of Pronouns.”

Part of it, as I’ve said before, had to do with how IT procurement generally is done, and it almost predates this year. Part of it obviously had to do with the fact that there were not clear enough lines of authority in terms of who was in charge of the technology and cracking the whip on a whole bunch of contractors. So there are a whole bunch of things that we’ve been taking a look at.

Again, someone else’s problem. Not mine.

And I’m going to be making appropriate adjustments once we get through this year and we’ve gotten through the initial surge of people who have been signing up.

But, you know, having said all that, the bottom line also is that we’ve got — several million people are going to have health care that works. And it’s not that I don’t engage in a lot of self- reflection here. I promise you, I probably beat myself up, you know, even worse that you or Ed Henry does — (laughter) — on any given day. But I’ve also got to wake up in the morning and make sure that I do better the next day and that we keep moving forward.

And when I look at the landscape for next year, what I say to myself is: We’re poised to do really good things. The economy is stronger than it has been in a very long time. Our next challenge then is to make sure that everybody benefits from that and not just a few folks. And there’s still too many people who haven’t seen a raise and are still feeling financially insecure. We can get immigration reform done. We’ve got a concept that has bipartisan support. Let’s see if we can break through the politics on this.

You know, I think that hopefully folks have learned their lesson in terms of brinksmanship coming out of the — coming out of the government shutdown. You know there have been times where I’ve thought about, were there other ways that I could have prevented that — those three, four weeks that hampered the economy and hurt individuals families who were not getting a paycheck during that time? Absolutely, but I also think that in some ways, given the pattern that we have been going through with House Republicans for a while, we might have needed just a little bit of a bracing sort of recognition that this is not what the American people think is acceptable.

They want us to try to solve problems and be practical, even if we can’t get everything done.

So, you know, the end of the year is always a good time to reflect and see what can you do better next year. That’s how I intend to approach it. I am sure that I will have even better ideas after a couple days of sleep and sun.

 

The letter to Sebelius, signed by Warner (VA), King (ME), Shaheen (NH), Landrieu (LA), Heitkamp (ND), and Kaine (VA) sent to Secretary Sebelius on Wednesday, Dec. 19 urged her to cover people who had their policies cancelled under the hardship exemption. The very next day, Sebelius did just that?! Coincidence, huh?

The letter begins?

We have heard from many of our constituents who are upset about the cancellation of their health care plans. We write to get explicit clarity on one provision of the law that we believe might be able to provide transition relief for some of these constituents.

What does “transition” mean? Some change that will get us past the 2014 midterm elections. But of course, with policies to be cancelled next year, there will be every incentive to extend exemptions next fall.

The letter goes on to urge that those who had their policies cancelled be granted a hardship exemption.

We believe it is essential that you further clarify what is defined as a hardship exemption to access these [catastrophic plans] . . .  We would hope that you make this change as soon as possible to give individuals time to make the decisions that are best for them prior to January 1st.

And wouldn’t you know it, the very next day, HHS adopted this formal definition of “hardship.”

Yuval Levin writes at NRO how stunning it is that within 24 hours of receiving a letter from vulnerable Democrats in the Senate, HHS suddenly had an epiphany of a policy change, and decided to exempt people from Obamacare because of the hardship Obamacare created by canceling policies under Obamacare.

It is a stunning move, plainly driven by dread at the impending chaos and dislocation in the individual market in January. It is also pretty clearly moved by utter panic among some Democratic senators, and their desire to be given credit for some of the administration’s Obamacare “fixes”—as evidenced by the bizarre kabuki theater of having six Democratic senators (who voted to impose this system on their constituents, of course) send a letter to HHS Secretary Sebelius on Wednesday asking her to take this step. If you think a regulatory change announced Thursday was made in response to a letter sent Wednesday, I’ve got a bridge over the East River to sell you. 

Instapundit has taken to using the phrase Potemkin Village of late. I don’t know any other way to characterize this recent “policy change.” This is government theater. Remember when Biden told vulnerable Democrats to “blame us” after the botched rollout of HealthCare.gov?

On Nov. 6, Ms. Landrieu and the other “2014ers” marched to the White House, where they spent two hours in the Roosevelt Room upbraiding the president and his advisers. Aides to Mr. Obama say the meeting was called, in part, to give Democrats a chance to publicly criticize the president — a message that Vice President Biden delivered to Representative Steny H. Hoyer of Maryland, the Democratic whip, in a separate meeting with several freshman Democrats.

“Just attack us,” Mr. Biden said, according to one person present. “Blame us.”

Levin adds:

Based on this step and the one announced a week ago, you would have to conclude that the White House knows something it isn’t telling us—and of course that’s not surprising given how secretive they have been about the facts, assumptions, and projections motivating their decisions regarding Obamacare implementation. What they know might be something about panic among Democratic lawmakers, it might be something about enrollment patterns, it might be something about insurer concerns, or some combination. But whatever it is, it is quite significant, because the step they have now taken is a very big one that could seriously undermine the architecture of the law the administration is still pretending to implement.

Administration policies are being made up on the fly, based purely on political constraints, without any concern for how this will impact millions of people.

Update: More from WSJ:

. But this week a group of six endangered Senate Democrats importuned HHS Secretary Kathleen Sebelius to “clarify” that the victims of ObamaCare also qualify. An excerpt from their Wednesday letter, whose signatories include New Hampshire’s Jeanne Shaheen and Virginia’s Mark Warner, is nearby.

HHS and the Senators must have coordinated in advance because literally overnight HHS rushed out a bulletin noting that exemptions are available to those who “experienced financial or domestic circumstances, including an unexpected natural or human-caused event, such that he or she had a significant, unexpected increase in essential expenses that prevented him or her from obtaining coverage under a qualified health plan.” A tornado destroys the neighborhood or ObamaCare blows up the individual insurance market, what’s the difference?

Levin echoes a point I made earlier. Why would anyone be stupid enough to pay the Obamacare mandate/penalty/unicorn?

First, the individual mandate is probably done for. I would now assume that no one will pay the individual mandate fine for 2014. The administration may give up on the mandate in the course of the ongoing enrollment period if the political pressure is great enough, or they may keep up the pretense of it through the end of the enrollment period in March (when it will have finished its work, so to speak, since its purpose is to influence choices made during that period) but then exempt everyone from it as they did with the employer mandate for this year. Having now exempted from the fine people whose policies were cancelled and who haven’t spent the money to get more expensive and less appealing new coverage, the politics of still applying the fine to everyone else who is uninsured this year will probably just not be sustainable, and the politics of exempting people from it (especially if they can hold out on doing so until after March 31) will be far too appealing for this White House to resist. They may claim the mandate will be back in 2015, but if they do exempt everyone from it in 2014 it will be hard to bring it back.

 

It will probably be waived for some, if not all people. See, selective enforcement is contrary to the rule of law, and upsets various reliance interests in consistent application of the law. Obamacare has wrought so many consequences. Further, there is no way you exempt people in 2014, and not 2015. It’s done.

Plus, forget about all the arguments to the Court how essential the mandate was to the ACA. Live to fight another day is the Obamacare mantra.

The administration claimed in court in 2012 that the mandate was absolutely essential to Obamacare’s implementation, and maybe it was. But they have come to realize over the past few months that Obamacare as they envisioned it is not really going to happen, and their goal now is to enable the survival of whatever elements of it can survive, so that they can regroup when the dust settles and try to rebuild some form of the liberal approach to health financing. The mandate is becoming an impediment to that goal, and it strikes me as reasonably likely now that it will not survive.

The unraveling continues.

Dan Ruttenberg, GMUSL JD ’97 argued Hillman v. Marietta on April 12, 2013. Congratulations to Ruttenberg!

The George Mason Alumni magazine has the story:

The thing is, Dan Ruttenberg, JD ’97, never expected to be a litigator, much less appear before the U.S. Supreme Court. But there he was in April, face-to-face with nine of the “greatest legal minds in the country, and you’re arguing with them,” Ruttenberg said. “Justice Scalia went right after me.”

It still seems surreal as he recounts his encounter with the “Supremes” from his Tysons Corner office of SmolenPlevy, a firm founded by Mason graduates Jason Smolen, JD ’77, and Alan Plevy, JD ’77. Ruttenberg, who is believed to be the first Mason alumnus to argue before the Supreme Court, is a certified public accountant with a master of law in taxation. He is a transactional attorney whose practice areas include estate planning, tax law, and succession planning for businesses; appealing a case to the highest court in the land was never on his bucket list.

…

The case,Hillman v. Maretta, looked to straighten out a seemingly clerical error: Warren Hillman neglected to change his beneficiary on his life insurance policy after divorcing his wife in 1998; he remarried in 2002 and died in 2008, leaving his widow out of the $124,588 in benefits. Cue the lawyers.

“I thought this was a small, slam-dunk case,” Buttenberg said. “The statute was right on point.”

Yes, well. “And it didn’t just go to the Supreme Court. First, it was removed to federal court on Thanksgiving weekend four years ago. I remember that vividly because I had to learn to file in federal court over Thanksgiving. My head was spinning. I was able to get it remanded back to the Fairfax County Circuit Court, but then they tried to move it to Albemarle County, and now I had to learn the law of venue. I successfully defended that attempt and finally got to court. I won in trial court, but then it was appealed and went up to the Virginia Supreme Court. That in and of itself was a big deal for me.”

It’s also where he lost the case. “But I wouldn’t give up because I’m competitive, so I appealed it to the U.S. Supreme Court. Everyone said, ‘You’ll never get the U.S. Supreme Court to hear it,’ but of course that just motivated me more. Lo and behold, they took my case.”

The Supreme Court accepted the case, despite overwhelming odds—of about 10,000 petitions, fewer than 80 are granted each year—based on a reading of Ruttenberg’s extensive brief. He credits his studies at Mason for polishing his writing skills.

“I was accounting and finance, a numbers guy, and I hated writing,” said Ruttenberg. “Mason absolutely taught me to be a much better writer.” Mason also taught him, he says, “how to think, how to have confidence in myself…. I started trusting my judgment a lot more. I thought Mason was a great law school.”

Postscript: The court found against Ruttenberg, but he still cherishes the adventure. “Part of me doesn’t realize how rare what I accomplished is,” Ruttenberg said.

Alas, the Court ruled against Ruttenberg’s client, petition William Hillman, 9-0.

More in Northern Virginia Magazine.

Art Lien had this sketch of Ruttenberg with the SCOTUSBlog roundup.

 

Taking the lectern to argue against preemption, Hillman’s lawyer Daniel Ruttenberg argued that “the federal interest ends once the insurance proceeds are paid out,” and that the states should be left to determine the effect of a divorce on the ultimate destination of the funds.  He had barely begun when Justice Scalia asked him about a specific provision of FEGLIA, 5 U.S.C. § 8705(e), which provides that the order of precedence may be superseded by the terms of a “decree of divorce, annulment, or legal separation,” but only if that decree “is received, before the date of the covered employee’s death, by the employing agency.” Justice Scalia inquired why, if Congress was solely concerned with the convenience of federal administrators, it would require them “to have to look to see if there’s a divorce decree on the books, blah, blah, blah, blah, blah.”  According to Justice Scalia, “[t]hat obviously shows that Congress . . . not only had a concern about efficiency of payment, but also had a concern about who gets the payment.”  The Justice went so far as to state that the presence of the divorce decree provision “blows away” Ruttenberg’s explanation of the statutory purpose.

 

Justice Ginsburg echoed Justice Scalia’s skepticism, arguing that under Ruttenberg’s interpretation, “this specific exception, rightly cabined, is generalized so that in all cases, the second wife will prevail over the first.”  Justice Ginsburg also raised the Court’s prior holdings in Wissner v. Wissner(1950) and Ridgway v. Ridgway (1981), both of which held that the orders of precedence in other federal insurance statutes preempted state laws that resemble Virginia’s.  Later in the argument, she offered additional justifications for the order of precedence, including not only honoring the insured’s choice of a beneficiary, but also the need to have a uniform regime for federal employees who may move from state to state.

 

As the back and forth continued, Ruttenberg stated the rule he wanted the Court to adopt: “[A] bright-line rule that said State laws that interfere with the administration of a plan are preempted, but after that, after the money has been paid out, laws that affect the benefits are not preempted.”  Justice Kennedy interjected: “In other words, they’re preempted, but the whole purpose of preemption can be thwarted.” Justice Sotomayor eventually joined the fray as well, focusing on FEGLIA’s explicit limitations on divorce decrees and asking why, if Congress had intended for the states to have plenary control of funds after they were paid, it didn’t just say so.

 

Ruttenberg’s only friend on the bench was Justice Alito, who helpfully put the shoe on the other foot for him by asking why, if Congress was truly concerned with effectuating the will of beneficiaries, it forced those beneficiaries to channel their intentions into a designation form as opposed to permitting them to simply execute a will under state law.  But the respite was short, as Justices Ginsburg and Scalia resumed their grilling until Ruttenberg sat down.