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The Washington Post reports that the President plans to ramp up the release of prisoners from Guantanamo Bay over the next two years. However, Congress has imposed a number of statutory barriers to releasing the most dangerous prisoners. But such parchment barriers are of no moment for the President, the Post explains:

Obama remains a long way from achieving his goal of closing Guantanamo and could yet be forced to threaten executive action if he cannot overcome congressional opposition to moving or releasing detainees. But officials are optimistic that they can make significant progress in pressing other countries to accept transfers.

This fits in with the president’s modus operandi. In the face of gridlock that thwarts his policy preferences, the President feels embolden to push the boundaries of executive powers.This entire notion of “threatening” executive action when Congress gets in his way is a really, really dangerous precedent. The only limits are those imposed by his Office of Legal Counsel (which aren’t much limits at all), assuming he actually takes their advice (not always the case).

With respect to Guantanamo, we already know that he is prepared to ignore Congress if the circumstances compel it. After all, the release of five detainees in exchange for Bergdahl was flatly illegal.

I am revamping my article, Gridlock and Executive Power, into two parts. Part I will be Gridlock and Executive Power with respect to domestic affairs. It will focus on Obamacare (individual mandate, employer mandate, premium subsidies for states without exchanges, the contraceptive mandate, waiving guaranteed issue in the territories, providing subsidized benefits for Congressional employees), immigration (DACA and DAPA), recess appointments (Noel Canning), and many others.

Part II will be Gridlock and Executive Power with respect to foreign affairs.  It will focus on Libya, Bergdahl, Guantanamo, and others.

Ultimately these will turn into a book project.

King v. Burwell is scheduled for oral arguments on March 4. I will be there. We should expect a decision at the end of June. That much is certain. What we don’t know, is what happens the day after King. This is a question I’ve given more thought of late. I’m working on a piece discussing possible compromises that could be reached between June, and September when subsidies cut off. Or, maybe a deal could be reached after arguments in March.

In any event, HHS should be publicly preparing for the eventuality that the subsidies will go away. Secretary Burwell is trying to play coy:

She declined to say whether the administration had a contingency plan for the potential loss of $64 billion in subsidies, adding: “I’m going to stick with where I am.”

But the fact of the matter is, HHS has given permission to insurers to exit the markets if the subsidies go away. So HHS has to have some contingency plans. We should learn what HHS has in mind.

(P.S. Sorry for the lack of blogging this week. I’ve been working on a brief that I’ll talk about shortly).

With the February 16, 2015 deadline to sign up for Obamacare drawing near, BlueCross BlueShield sent a mass mailer to their customers warning them what happens if they go insured.

“When you don’t have health insurance … you put your financial security at risk,” the mailer states. “That’s because under the new Affordable Care Act legislation, millions of Americans will have to pay an increased penalty tax of at least 2 percent of their income in 2015 if they go uninsured.”

The “good news,” the letter said, is that CareFirst BlueCross BlueShield has “solutions” to help people avoid the penalty, including coverage that is “compatible with financial assistance or free money from the government that will help qualifying individuals pay for insurance.”

If you want to know what a “penalty tax” is, ask the Chief.

In Ron Collins’s latest installment with Judge Posner, we gain an insight about why he does not issue per curiam opinions.

I stopped issuing per curiam opinions some time ago; it didn’t seem to me that “per curiam” was sending a useful signal; I couldn’t see the point of concealing authorship. West asks each judge to list his per curiams, and they are then included in the annual volume of a judge’s opinions, which West prepares and sends to the judge. So anyone who is interested could find out which per curiams have been mine. 

I agree. I have similar feelings about unpublished opinions.