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In a post explaining the origination clause challenge, Randy Barnett highlights the problem of “double deference”–that is, Congress purports to defer to Congress about the constitutionality of a law they are enacting (not my problem!), but at the same time, courts will defer to Congress to make an independent judgment about constitutionality (that is for Congress to decide!):

Like most, Jonathan predicts that the courts will ultimately defer to Congress on this question, and the smart money is always that Congress will defer to Congress. That is the problem of “double deference.” On constitutional questions, the courts defer to Congress’s assessment that its acts are constitutional. Then when you ask members of Congress whether what they are doing is constitutional, they respond by saying, “that is the job of the courts” or, even more commonly, they predict that “the courts will uphold us.” Of course, if the courts defer constitutional judgments to Congress, and Congress defers constitutional judgments to the courts, then no one is considering the Constitution itself. Double deference is a shell game, not to be confused with a shell bill.

This dynamic is particularly true in the context of Obamacare, where Congress absolutely abdicated its role in considering (or even caring about) the constitutionality of the law, or even to follow the normal mods of procedure to enact the law.

Randy also notes the problem of “triple deference” when professors defer to Courts which defer to Congress which defers to Courts. Or something  like that:

When law professors confine their judgment of constitutionality to predicting what the courts will do, we then have a “triple deference” situation, with law professors deferring to courts who defer to Congress who defers to the courts. Better that law professors generally focus on whether a constitutional argument has merit rather than just predicting outcomes. A sole focus on predictions was part of what led law professor astray in assessing the viability of the constitutional challenges to the individual insurance mandate in the ACA. (For other factors, see here.) Moreover, a robust discussion of the merits of a legal issue is of greater service to the courts, who don’t need to be told by law professors what they will or will not do. They will just do it.

Randy builds on this theme in the new afterword to Restoring the Lost Constitution.

There are two metrics that HHS is not keeping that boggle my mind.

First, Secretary Sebelius has absolutely no clue how many people who were previously uninsured now have insurance through Obamacare.

Sebelius said she does not know how many enrollees were previously uninsured.

A survey by McKinsey determined that 27 percent of new enrollees were previously uninsured, though ensuring those without coverage was the main purpose of creating the law.

“That’s a low number compared to what you all projected,” Price told Sebelius. “Is that consistent with your information?”

“We don’t collect the previously insured,” Sebelius responded. “We’d be happy to give them to you as soon as we have accurate information.”

Second, Secretary Sebelius has absolutely no clue how many people who signed up for Obamacare have actually paid.

“People are buying a product in the private market,” Sebelius told the House Ways and Means Committee, which was holding a hearing on the 2015 HHS budget. “As soon as we have accurate information, we will give it to you. But we do not currently have information about how many people have paid.”

…

“How can it be that HHS, in charge of this program, cites a number, 4.2 million people signed up, but has no idea how many people have paid?” Rep. Tom Price, R-Ga., asked.

Sebelius said the government does not have access to the information, “because the consumers don’t pay us, they pay their insurance company.”

Not every is persuaded:

“They have a lot more information than they’re letting on,” one industry source said of the Obama administration. “They have real hard data about the percent that have paid … If they have not processed those yet and compiled the data, that is a choice they are making. But they have that data now.” …

Kip Piper, a former CMS adviser during the administration of President George W. Bush, said the administration’s reluctance to calculate more accurate enrollment numbers is an obvious and wise messaging tactic.

“They don’t want [to] provide new cannon fodder for use by ACA opponents,” he said in an email. “Right now, the administration is benefiting from the opaqueness of ACA’s impact on the ground. It leaves it in the realm of anecdote, and it’s easy to combat anecdotes with counteranecdotes and the broad, imprecise monthly reports. It may be seen as shameless, but it’s a political no-brainer.”

And, by the way, through a spokesperson, HHS has acknowledged the WSJ’s report that those who had their policies cancelled can receive an Obamacare waiver for 2 more years.

“This is a common sense clarification of the law [sic] that we made clear last December,” said Department of Health and Human Services spokeswoman Joanne Peters. “For the limited number of consumers whose plans have been canceled and are seeking coverage, this is one more option.”

This decision can hardly be described as law. Through executive fiat, HHS rewrote the law. There is no clarification.

Of course, delaying the law will further destabilize the market. And of course, this will necessitate expanding the risk corridors to cushion the losses to insurance companies.

In response to the regulations, America’s Health Insurance Plans (AHIP) suggested that lengthening exemptions to the individual mandate could mean higher premiums overall.

“That is why it is crucial that sufficient steps be taken to stabilize the market,” said AHIP President Karen Ignagni in a statement, referring to policies like risk corridor payments.

As I said earlier, the President is sabotaging Obamacare in ways Ted Cruz could not even dream of.

Update: I see that Sebelius herself acknowledge the expanded waiver:

HHS Secretary Kathleen Sebelius also happened to testify Wednesday in front of the HouseWays and Means Committee, and Tennessee Republican Diane Black asked about “ObamaCare’s Secret Mandate Exemption” (March 12). Ms. Sebelius said she hadn’t read the editorial but did call Ms. Black’s gloss “not accurate”—before going on to confirm that it was, in fact, accurate.

“The hardship exemption was part of the law from the outset,” the Secretary said. “There was a specific rationale there, and it starts with the notion that if you can’t afford coverage you are not obligated to buy coverage.” That’s true: But in December last year HHS ruled that ObamaCare itself was a hardship; people whose coverage was cancelled and believe the new plans are unaffordable were thus relieved of the requirement to buy insurance or else pay a penalty for the law’s first year. Our scoop was that HHS last week quietly extended this dispensation until 2016.

“The new piece is not the hardship exemption, which has always been part of the law,” Ms. Sebelius continued. “It”—the new piece—”allowed people who could not find an affordable option to also have the option of purchasing a catastrophic policy.” That’s also true: HHS did expand eligibility for this special category of coverage otherwise designed for people under 30 to those who declare a hardship, regardless of age, in response to a plea from Virginia Senator Mark Warner and five other endangered Democratic colleagues.

The detail Ms. Sebelius is leaving out is that the exemption isn’t simply a coupon for a catastrophic policy but also a get-out-of-jail-free card from the mandate. That’s the definition of the hardship exemption—you are not obligated to buy coverage or pay the fine. As HHS puts it on the Healthcare.gov consumer website, “Under certain circumstances, you won’t have to make the individual responsibility payment. This is called an ‘exemption.'”

Or as Ms. Sebelius herself put in her letter to Mr. Warner & co., “I agree with you that these consumers should qualify for this hardship exemption, and I can assure you that the exemption will be available to them.”

Update: More from Politico:

The dispute emerges as the administration is trying to convey a sense of enthusiasm and momentum ahead of a March 31 deadline to enroll in Affordable Care Act exchanges. But unless the current pace doubles, the administration won’t hit its target of 6 million people — a goal that was already scaled back from 7 million after last October’s messy rollout of HealthCare.gov.

But the hill to climb may be even steeper than the White House acknowledges. Once the premium payment rate is factored in, the actual count of people who now have health coverage under the president’s health law could be closer to 3 million than 4 million. The insurance exchanges may still work with fewer people — but the political narrative is that the controversial health law is again falling short.

The White House insists that industry claims notwithstanding, it can’t provide precise enrollment totals — and may not be able to for months because major “back end” components of HealthCare.gov are still under construction. Those pieces are supposed to collect data directly from insurers about the number of premium-paying customers on their rolls.

I was thrilled when I got a call from Houston Matters, a great show on Houston Public Radio, to go on the air today to talk about what the 28th Amendment to the Constitution should be. Please tune in. Hint–none of Justice Stevens’s 6 Amendments will make my list.

Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. In a new essay titled “What Happens if Data is Speech,” published in the University of Pennsylvania Journal of Constitutional Law Online, I consider the next question in this emerging area of the law. What happens if data is speech? I approach this inquiry from three angles.

First, I explore how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. Second, I turn to the power of search engines, and consider which poses a greater threat to free expression: the lack of regulations of these powerful intermediaries, or the regulations themselves. As search engines evolve into decision engines, and more of our choices are informed by the outputs of these algorithms, this tradeoff becomes more important based on what the search engines choose to reveal, and obscure.

I conclude by offering a framework of how courts should treat algorithmic outputs for purposes of the First Amendment, based on their nexus with human interaction. The more the human interacts, the closer the communication will be to something the human created herself, and something that warrants protection. In contrast, outputs that are created with isolated autonomy, and involve little personal involvement depart further from the humanistic expression that warrants protection. Whatever regime the courts settle on must confront this interwoven nature of human-computer interactions.

Kentucky has a law that restricts the ability of a candidate to appear twice on a ballot–for example, for Senate and Kentucky. There have been murmurings that Senator Rand Paul would seek to get the law changed. Though Paul’s counsel suggests that this law is inconsistent with Supreme Court precedent.

“Federal law governs federal elections, and the Supreme Court has made it clear that states cannot impose additional qualifications beyond those in the Constitution,” Doug Stafford, a senior adviser to Mr. Paul, wrote by email. “We are not seeking to change the law, but rather to clarify that the Kentucky statute does not apply to federal elections.”

He didn’t say it outright, but this suggests that Paul believes the law, as applied to him, is unconstitutional.

Would this would pose any problems under U.S. Term Limits v. Thornton–specifically, can a state add additional requirements to be listed on the ballot for federal office. In this case, the additional requirement would be not running for another office.

I posed this question earlier to Rick Hasen and Derek Muller. Both said this law is okay.

@JoshMBlackman I don’t see a problem. Most ballot access restrictions are ok under US Term limits and Cook v. Gralike

— Rick Hasen (@rickhasen) March 10, 2014

@JoshMBlackman @rickhasen I’d argue states have more control over presidential elections, so conditions acceptable.

— Derek T. Muller (@derektmuller) March 10, 2014

Stay tuned.