Blog

In an article explaining that 800,000 people who signed up for insurance on HealthCare.gov (1/5 of the total) received incorrect tax notices, the Times causally mentions that the President caved to pressure and is opening up a “special enrollment period.”

The health care law requires Americans to have insurance, obtain an exemption or pay a tax penalty. Mr. Slavitt said the new special enrollment period was intended for people who had been unaware of the penalty, which the government calls a “shared responsibility payment.”

To qualify for the special enrollment period, consumers must certify that they filed their tax returns and paid the penalty for not having coverage in 2014. They must also certify that they “first became aware of, or understood the implications of, the shared responsibility payment after the end of open enrollment — Feb. 15, 2015 — in connection with preparing their 2014 taxes.”

…

The special enrollment period serves three purposes to the administration. It will increase the number of people with health insurance, a goal long sought by Mr. Obama. It will reduce the number of people who must pay tax penalties, potentially reducing anger at the White House and opposition to the Affordable Care Act. And it will increase the number of people who receive health insurance subsidies and thus have a personal stake in a Supreme Court case challenging payment of the subsidies in more than 30 states.

Of course, there is no way to prove who only learned about the Obamacare penalty after enrollment closed in February 2015.

It is not clear how the government could verify taxpayers’ claims about when they first realized the implications of the tax penalty. But the pressure to create the new enrollment opportunity was clear. Democrats like Senator Tammy Baldwin of Wisconsin and Representative Lloyd Doggett of Texas, who had urged the move, welcomed the announcement Friday.

This article is very confusing, and doesn’t actually explain how the “special enrollment period works.

The deadline to sign up on HealthCare.gov for coverage in 2015 was February 15, 2015. If you failed to do so, you will need to wait until next year for coverage. By failing to have health insurance during any month in 2015, you will be subject to the individual mandate penalty (or as John Roberts likes to think of it, a tax). If someone signs up for health insurance in March of April, they were still uninsured in January and February, so they would be subject to the penalty. Of course, none of this will matter until 2016, when the returns for 2015 are due. So why the urgency now?

Because as many as 6 million people, who were subject to the individual mandate in 2014 (not covered by exemption), will have to pay the penalty before April 15. The Administration is panicking, and worries about how these people will suffer a huge tax bill. So to preempt this from happening again next year, they’ve re-opened the enrollment period.

Is this even legal? Does HHS have the authority to do this? I haven’t had time to research this question, but I will look into it.

On Thursday, February 19, the John Marshall Law School Federalist Society Chapter hosted me for what was supposed to be a discussion of executive power, but quickly morphed into an analysis of Judge Hanen’s decision in Texas v. United States. My interlocutor was Professor Steven Schwinn, whose work I’ve followed for years on the Constitutional Law Profs Blog. We had a wide-ranging discussion focusing on standing (Article III and prudential), the APA, and the Take Care Clause. This podcast offers a fairly detailed overview of what the decision means, and what happens next. Enjoy!

The House Judiciary Committee invited me to testify on the constitutionality of DAPA. The hearing will be held on Wednesday, 2/25 at 10:15 in 2141 Rayburn House Office Building. Here is the description and full witness list:

House Judiciary Committee to Hold Hearing on Unconstitutionality of President Obama’s Executive Overreach on Immigration

 

Washington, D.C. – On Wednesday, February 25, 2015 at 10:00 a.m., the House Judiciary Committee will hold a hearing on the unconstitutionality of President Obama’s executive overreach on immigration. Although President Obama has stated over 20 times that he does not have the constitutional authority to change our immigration laws unilaterally, in November 2014 he proclaimed that he would unilaterally allow four million unlawful immigrants to stay and work in the United States without a vote of Congress. Twenty-six states have filed a lawsuit challenging the constitutionality of President Obama’s unilateral actions and a federal judge has temporarily blockedPresident Obama’s executive action on immigration.

 

At Wednesday’s hearing, the House Judiciary Committee will hear from the following witnesses on the President’s unilateral, unconstitutional actions:

·         The Honorable Adam Laxalt, Attorney General of Nevada

·         Mr. Josh Blackman, Assistant Professor of Law, South Texas College of Law

·         Ms. Elizabeth Price Foley, Professor, Florida International University College of Law

·         Mr. Steve Legomsky, Professor, Washington University Law School

Following my post last night about the DOJ’s “struggles” of how to proceed from Judge Hanen’s ruling, I went back through the transcript and looked for references to notice-and-comment. Should DOJ have been on notice this was a possible grounds for resolution? Well, yeah.

THE COURT: Does it matter in this case — and I didn’t ask Mr. Oldham this, but I will before we’re done today, so — but I’ll start with you because you’re — does it matter, No. 1, we’re not dealing with a regulation that has gone through notice and comment?

The entire point is to ensure that when people are aggrieved by the way that the government is making legislative rules, that we have an opportunity to have public comment and that they reach a reasoned, nonarbitrary and non-capricious decision that takes in — that takes into account the views of affected people. So that’s the APA.

So what are the reasons? They’re all eligibility criteria. These are not from statute. These are not from the 27 provisions that Congress gave. They’re not from the regulations that have been — that people have opportunities to challenge through notice and comment.

Now, once it’s a substantive rule, then it triggers a whole host of remedies for the plaintiffs under the Administrative Procedure Act. First, the notice and comment requirements are quite easy and straightforward for the Court in the sense that the United States has conceded that they did not issue this directive through notice and comment. The State of Texas, none of the plaintiff states, none of the members of the public has ever had a chance to offer public input into what the defendants have done, much less have they responded in a notice and comment on rule making to the public input that the states would have offered if we had been given the opportunity

THE COURT: — just to eliminate things. I mean, Mr. Oldham argued — and I’m asking you this because I think you will agree with this — is that if the APA applies and if the states have a ripe standing to sue under the APA, I mean, the injunction is good, isn’t it? I mean, y’all haven’t gone through the notes [sic] of the publication and comment procedure that would otherwise if the APA applies.

MS. HARTNETT: Right. So that — that’s a separate — that would be regardless of whether it’s like in the enforcement paradigm of Heckler, that would be the type of general policy guidance that would be immune from notice and comment.

I am really, really confused. For the last month or so, based on my reading of the transcript, I was fairly convinced Judge Hanen would issue a preliminary injunction, putting DAPA on hold. I have to imagine the Justice Department reached a similar conclusion. Even more so, I have to imagine that DOJ recognized that a federal district court could put enjoin DAPA even before a suit was filed, based on procedural or substantive grounds. From my research on Obamacare, teams were assembled before the law was even passed to prepare litigation strategies. So what happened?!

Michael Shear and Adam Liptak have an insightful article in the Times, titled “White House Struggles on Immigration Ruling.” Why on earth are they struggling? How could they not have anticipated this would happen?

President Obama’s lawyers, facing what could be months of delay on the White House’s immigration efforts, are struggling for a response to a Texas judge’s ruling that has imperiled one of the president’s potential legacy achievements.

A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions.

The administration is dithering between an emergency stay and an appeal on an expedited basis.

It could ask the federal appeals court in New Orleans, the United States Court of Appeals for the Fifth Circuit, for a stay of Judge Hanen’s preliminary injunction. But that could be an uphill fight in a court dominated by Republican appointees.

A stay is ordinarily granted to preserve the status quo. Were the program to move forward, its benefits and protections might be hard to take back. Without his preliminary injunction, Judge Hanen wrote, “There will be no effective way of putting the toothpaste back in the tube.”

Any decision by the appeals court on a stay application would almost certainly be appealed to the Supreme Court.

But the administration may prefer to file an appeal rather than an emergency application, though perhaps on an expedited basis, in an effort to get the merits of the dispute to the Supreme Court as soon as possible.

If the administration files for an expedited appeal, followed by certiorari, it would effectively be impossible to resolve the issue before July. The case will be argued next term, with a decision as late as in June 2016. At that point, the administration is over. Why wouldn’t they go with the emergency stay?

More importantly, why was this decision not made weeks, if not months ago?

Could it be hubris?

“I have always thought that the administration and their supporters were greatly underestimating the likelihood that this would all get struck down in court,” said Michael McConnell, a law professor at Stanford University.

As I noted in National Review, initially supporters of DAPA scoffed at the challenge. Could it possibly be that the adminstration drank its own Kool Aid? Were they so swept up in ridiculing those who argued the policy was unlawful, that they didn’t have an honest assessment of how a court would review it? The poorly-reasoned OLC opinion may be a testament to this fact.

Further, the administration has to know that the time is ticking. As I closed my article in National Review this morning, Judge Hanen’s ruling could allow Texas to run out the clock on the Obama administration:

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

Eric Posner makes a similar point in the Times:

The ruling confronts the administration with a series of uncomfortable choices. Its decision will be affected by the reality that time is not its friend.

The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.

“In practice,” Mr. Posner said, “notice-and-comment rule making can take years.”

I have no clue what they are doing.