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  • UPDATE: DOJ Asks for Expedited Review of Obamacare Loss

    After weeks of delay, the Obama Administration finally went ahead and did it.

    Early last night, the Department of Justice (DOJ) filed a notice of appeal in Florida v. HHS, the multi-state lawsuit that has the best chance of striking down Obamacare. And this morning, DOJ filed a motion in the U.S. Eleventh Circuit Court of Appeals for expedited review  of the case, which was a condition the district judge imposed on the DOJ to grant its request for a stay of the judgment pending appeal. This is a significant strategic victory for the states and the National Federation of Independent Business on the eventual march to the Supreme Court.

    For those who have been following the case closely, the government’s motion for expedited review is a conspicuous change of pace for the Obama Administration, which has attempted to delay this litigation at every turn and with highly questionable legal tactics. The Administration’s goal was (and probably still is) to buy time to build up the edifice of Obamacare so that, even if the courts do strike down the individual mandate, the Supremes will allow the rest to stand. That strategy is now unraveling.

    The Administration’s most notable effort to drag out the litigation came earlier this month in a bogus “motion to clarify” Judge Roger Vinson’s decision, which held that the individual mandate is unconstitutional and struck down the whole law. As Hans von Spakovsky and I explained last Thursday, that strategy backfired spectacularly with a stunning and deserved rebuke from the district court. As Judge Vinson explained in his order last week, the court expected that DOJ would rush to stay the court’s order and then file an immediate appeal. But, the judge wrote, “It was not expected that they would effectively ignore the order and declaratory judgment for two and one-half weeks, continue to implement the Act, and only then file a belated motion to ‘clarify.’” The Administration, he concluded, was just playing games.

    To get things moving, Judge Vinson gave the government an ultimatum: appeal within a week and seek expedited briefing in the appellate courts (either the Eleventh Circuit or the Supreme Court), or the implementation of Obamacare will come to an immediate halt. Wisely, DOJ took the judge at his word—this time—and filed its notice of appeal and motion for expedited briefing at least one day earlier than the deadline.

    Until last night, it seemed like the government would wait out every deadline to the last possible moment. Now, however, DOJ may have come to the realization that the courts have seen through its strategy, and further delay will prejudice the next level of judges further.

    That said, the Administration’s motion to expedite the appellate briefing requests a timeline that is still too slow and attempts to reserve one exception: if the states file a cross-appeal on the Medicaid funding-coercion argument they lost on. This asking-for-expedition-but-then-trying-to-drag-its-heels approach probably won’t work. The plaintiffs will likely seek a more expeditious briefing schedule without any exceptions. With both parties seeking expedited briefing, it is likely the Eleventh Circuit itself will set a reasonably prompt schedule when it rules on the two motions.

    The bottom line for those of us who can calculate the appellate timetables is that it is likely that a decision will be reached in the court of appeals by this fall, if not earlier, and the Supreme Court can consider and hear the case next winter for a likely decision in June 2012 or earlier.

    Finally, we can thank Judge Vinson again for putting the appeals court on notice so that it won’t put up with any attempt to do an end-run around the judicial process and, ultimately, the Constitution.

    Posted in Obamacare [slideshow_deploy]

    12 Responses to UPDATE: DOJ Asks for Expedited Review of Obamacare Loss

    1. Bobbie says:

      We the people ask for expedient action to hold this president and his cohorts accountable to this deliberate corruption. We don't want this obamacare as it is a threat to our health and livelihoods. Please don't let them get away with this. Their actions are criminal, we want reprimand. Don't fall for the poor, poor democrats, they did this behind our backs, corrupting everything around it, causing higher pricing in the private sector when they promised to reduce the costs, forcing this hideous and heavy burdens on us. AMERICA DESERVES BETTER! Please remove this so private insurance companies can resume without the extra costs put on us. I don't know how people can trust the party of democrats ever again? They're more work and trouble than their worth.

    2. Pingback: COACHEP » Blog Archive » News about Obamacare issue #297

    3. R Holland, Chandler, says:

      Don't kid yourself, the DOJ will continue to slow roll this as much as possible. Heritage Foundation should continue to expose every fact about Obamacare so that the public will continue to dislike it more and more.

    4. Norma in Nebraska says:

      As the Democrats in Wisconsin have proven, when they try to do the wrong thing, it comes back to haunt them in a BIG way!!! If the President and his administration are behind the supposed recall election of the Republicans in Wisconsin, he might want to be careful because it could come back to bite him. Once the organized union leaders go home and leave the Wisconsin residents to face their dire financial position by themselves, they may not take too kindly to the Federal government sticking their nose in where it doesn't belong! The real winner/loser in the Wisconsin debate is the UNIONS, not just the citizens of that State . . . . there's a lot at stake for the whole country as this battle with the unions continues.

      As for Queen Nancy and her signature achievement during her "reign of terror": we don't see much of the old girl these days . . . maybe she is hiding in Illinois with the Wisconsin 14!!! Or maybe she is busy looking for a publisher for her new book – you KNOW she is writing one – which will detail all of the "wonderful" things she accomplished on "behalf of the American people!" Hope she isn't investing millions of her own money to accomplish the task because I can't think of one reason anyone would want to buy it! Or maybe she is just trying to write a speech justifying WHY she and Harry, along with the rest of their gang, decided it was okay to "horn swaggle" (that is a Cowboy Poetry term!) the American people!

      But Prince Harry is still at the helm in the Senate . . . . talking about the utter seriousness of cutting spending and how it will effect "The Cowboy Poetry Festival" in northern Nevada. "Tens of thousands of people attend every year" – Harry might want to check the count because last year it MIGHT have been 8,000 at the most! Never mind that the WHOLE COUNTRY is in financial trouble . . . the most important thing on his mind is poetry . . . isn't that "poetic?" He is so concerned about his poetry that he probably hasn't figured out yet that the HealthCare bill is in real trouble, thank God for that!

      But you have to admit, when Nancy said, "You have to pass the bill if you want to know what is in it", that was more than a mouthful of horse manure, even for her! The fact that over a billion dollars of financing for the program was HIDDEN in there tells you that they KNEW the American people would rise up against its implementation when they finally figured out what the Democrats were trying to do to us and our health care AND the future of our country.

      As Glenn Beck would say, "The truth shall set you free!" Conservatives – Keep fighting back because to give in is to accept Socialism as our fate as well as for our children and grandchildren!

    5. William Person says:

      I'm sorry, the timeline for the 11th Circuit Court is atrociously slow for a country on the brink of economic catastrophe!!

      Do you think we could ask them to look at our schedules as my mortgage, my health premiums, my gas bill, my energy bills, my food bills are all due sooner than next fall!!

      If I have to look forward to higher health premiums and lesser care due to Obamacare at least I will have greater time to PLAN FOR IT!!

    6. Leon Lundquist, Dura says:

      Obama teaches Misrepresentation by example. The PPCA is the true example of mechanical misrepresentation done sorcery style, above the People's heads! What did Judge Vinson 'say' to the Political Analyst? If we were hip enough to "get it" the Judge told us the Demo-crats were playing the System against itself! It was "improper" and "disrespectful" but it is a found fact that Government appears "confused" and "misunderstood" the "import" of Vinson's original Order. They are riding the very edge of Contempt and Violation of a Court Order! Oh! But it is just barely possible Demo-crats were confused!

      Please understand, the Government was dishonest in bringing two mutually exclusive arguments to Court "It is a tax" and "It is not a tax!" "It is a Penalty" and "It is not a Penalty!" They are asking for unlimited Power to Regulate! That is a found fact! Not my Right Wing opinion. Those crazed Commies are pushing for Totalitarian Government!

      Isn't that the proof of Criminal Intent? No loyal American President could seek or want these Powers! How can there be "Congressional Intent" when nobody could Read the Bill? If the Whole Bill is Unconstitutional then Rep. Michelle Bachman's $105 Billion is a High Crime and a Violation of a Court Order (1-31-11) in the Record. The Judge saw Red Flags all over the place! "This is a novel issue," "unprecidented" new Power come to Government in the dark of night! Somehow Harvard Law School is behind Totalitarian Government in America! Let that sink in a moment! Ask again why Justice Kagan was 'awarded' her Supreme Court Seat? "Thanks for selling out Harvard Law School to Totalitarian Communism!"

      Vinson was wonderful citing U.S. v Stevens, "The Constitution protects us from Noblesse Oblige," do you appreciate how sharp a barb that is? William Wallace! Braveheart, the movie? Noblesse Oblige was the Right of Nobles, their obligation to 'seed' the peasant's first born children. Judge Vinson is warning America! On page 12 Vinson exposes the Government double dealing again! The Feds say they will follow the Order, then they say they don't have to! Then why, pray tell, did they say they would? To intentionally stall off the Order, fooling the Court to create doubt. On top of that, the Feds cite Case Law that doesn't apply! Judge Vinson, hardworking man, isn't taking the Red Herrings! But get this now, as a Matter of Record the Government is playing dirty! Judge Vinson laid the groundwork to find the Government in Criminal Contempt!

      It isn't my opinion the Obama Government is criminal, that is a found fact! Thanks Judge Vinson, they actually do want Totalitarian Government, I knew that. The House must say "No!" or our Republic is forfeit! Take the ammunition Judge Vinson offered, demand Representative Constitutional Democracy! Then, Investigate the Obama maniacs! The sharks are circling and the blood is in the water.

    7. Rebecca Arend Knott says:

      Take note America, this is our constitution in action. The Founders of this great country could not foresee every protection we would need throughout history but were inspired when they divided our government into 3 parts, the Judicial, Legislative, and, of course the Executive. Regarding Obamacare, those branches we elected to represent us, including the executive and legislature branches, have failed to listen to our wishes, and we are left with a monstrous expensive law designed to take away our God given right to freedom of choice. I pray that the judicial branch, using reason and the Law will do the right thing and back up that amazing inspired document, The Constitution; resulting in completely overturning Obamacare.

    8. Pingback: New issues stand to hurt Obama's 2012 re-election chances | Kyle Wingfield

    9. Pingback: Court to DOJ: No More Stalling on Obamacare Lawsuit | The Foundry: Conservative Policy News.

    10. Allan M Salzberg MD says:



      I. Size and Scope of the Problem

      A. The first step in developing an estimate of the size of the population that needs the health care benefits discussed later. Clearly we would want to provide affordable coverage for all legal residents. We do not need provide subsidized health care insurance to those who are non- legal residents. Since it is generally estimated that at any point in time there are 45 Million non-insured, the upper bound of those legal residents or visitors who need health insurance subsidies falls to 33 Million individuals.

      There are about 12 Million persons under 30 who earn over $60,000/ year but do not want to purchase Medical Insurance because they feel that it is a poor buy for them. These do not need to be subsidized. They could be induced to buy it if Medical Debts that occur in these well off persons, and who chose not to buy it become non dischargeable by bankruptcy in the same manner as holds for Student Loans.

      Finally, there are another 12 Million persons who already qualify for Medicaid or S-CHIP who simply have not signed up for these benefits. Thus, there are about 12 Million qualified persons who cannot afford to purchase high quality Medical Insurance. This is the population that needs targeted help. For discussion we will use the Federal Blue Cross/ Shield plans as a benchmark. These cost about $20,000/ year for a family,

      and they are high quality. In this plan, the premiums are the same for all.

      B. For ease of calculation, and remembering that this is a first cut, we will assume that the 12 Million Individuals are grouped into 3 Million families of four. The cost’s will have an upper bound of 3 million times $20,000 and is $60 Billion/ year, and is presented to understand how we derive the truer costs.

      1. One reason for this economically high cost is that individuals and small businesses pay far higher premiums as those paid by Large Corporations and Governments. In addition, individuals and small businesses are hit with pre-existing conditions disqualifiers. The reasons for this are multifold. The first is a higher paper cost per policy for small plans. A second reason is that these small businesses costs have greater actuarial uncertainties; and gaming becomes more serious.

      2. In Virginia, when I practiced there, Physicians formed a group under the aegis of The Medical Society of Virginia. Premiums and benefits were comparable to those in Federal Blue Cross/ Shield. In a like manner large affinity groups of Small Businesses and Individuals should be created. This could lead to a 20% reduction in premium costs as compared to present ones.

      3. Tax policies also need to be altered so that the tax on Medical Insurance would be the same for small businesses and individuals would be the same as with large groups. Also medical insurance should be bought over state lines.

      4. One immediate effect of these policies would lower the number of those who were unable to buy Medical Insurance because of costs. For discussion, we know estimate that number of those legal residents who are deprived economically of Medical Insurance to 9 Million individuals (or 2.25 Million Families).

      5. In this group, some will need a small subsidy while others would require a 100% subsidy, depending on their income. Thus the average subsidy would be about $10,000 year.

      6. The total yearly cost of subsidizing Medical Insurance would be of the order of $23 Million/ year.

      7. Even here, the 10 year costs of $225 Billion are dwarfed by Obamacare, and do not transform our excellent quality of care. It does not rob Medicare of $500 Billion, which will greatly lead to an ever growing rationing of care to America’s most vulnerable group, seniors. This is not “blowing in the wind, it is the avowed platforms of Dry Ezekiel Emanuel, Tom Daschle, and Dr. Berwick. The first two have published documents that if you are older than 55 (65) you should not receive expensive treatments as you are not of sufficient worth (to the state ) The latter was appointed when the Senate was in recess because his avowed statements on rationing and Health Care in England. There was no delay in the way his appointment, and the only reason was the toxicity of his views.

      8. There is Vast Redistribution of wealth from seniors who have saved for their retirement to others and runs the risk of intergenerational warfare. It breaks the Social Contract.

      9. Obamacare is the most intrusive anti-privacy system that I am aware of.

      10. There was a recent flurry of attention as per the end of life discussions being “Death Panels”. As correctly stated, they really are not the daggers, and eliminating them is “Feel Good”.

      11. Unfortunately, there is a true and deadly “Death Panel.” Obamacare sets up a panel of “Nameless Bureaucrats” whose mission is to lower costs. In fact it is estimated to drive down re-imbursements from Medicare till by decade’s end they will fall below that of Medicaid. It is true, that the panel is not allowed to ration care; so why the worry.

      12. This invidious panel is given the authority to set re-imbursements, and to over rule the panel it takes not only an Act of Congress, but also the agreement of the President. This is DeFacto Rationing. In addition, it will lead to more and more Senior Care to be given by Nurse PR actioners and Physicians Assistants. Yet, seniors are the most complex patients.

      13. Buried deep in the bowels of the Bill, it calls for Racial and Gender bias into who gets into Medical Schools.

      14. Many physicians will retire rather than working under Obamacare. This will be most prominent for Primary Care Physicians who are already in short supply.

      The above are first order effects. There are additional cost reductions that follow from the above-mentioned reforms. In particular, there will be a significant decrease in cost shifting as a far greater share of patients has good insurance. This leads to decreases in all areas and will lower premiums. Thus the above are an upper bound of costs. A more detailed analysis will result in lower costs.

      II. Cost Reforms

      A. Tort Reform is an essential factor in reforming health care funding

      1. The total cost of health care in the United States is about $2.5 Trillion per year. A one percent saving would be $25 Billion

      2. Estimates of savings are 2% or are $55 Billion per year that is the estimated cost of “Defensive Medicine” engendered by our present system.

      3. The $55 Billion is more than twice the cost of the above mentioned reforms

      4. These numbers provide a significant protection of costs or the numbers covered.

      III. Tort reform leading to eliminating the cost of Defensive Medicine that is estimated to be $55 Billion can more than cover needed reforms without onerous governmental intrusions into the most private details of Americans Life. We must not allow faceless bureaucrats to determine life and death decisions which will be made with incomplete data.

      Iv. Further cost savings would come with allowing Medical Insurance to be bought across State Lines (with some regulation). Competition in the Market does lead to a better and less expensive products.

      5. If we were to cover 25 Million, the cost would be less than $50 Billion/ year which would still be less than the savings from Tort Reform.

      6. Another significant would be the marked reduction in unpaid costs of Medical Care as the percentage of uninsured would be far lower.

      Big Brother, one plus one is 2, not the 3 that you say. Now is the time to get it right!

    11. Pingback: Court to DOJ: No More Stalling on Obamacare Lawsuit | Fix Health Care Policy

    12. Susan Noegel 4747 Co says:

      I do think that this will be dragged out for a very long time. If it goes till 20012 then to the Supreme court, who's to say it will be judged as about the constitution? When is Obama up for reelection and how many more judges can he nominate before he's done wrecking the hole United States economy.

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