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September 5, 2014

ObamaCare’s Rehearing Aid

Reid’s Senate “nuclear option” paid off with an en banc rehearing of an ObamaCare case.

The Master of Disaster in the Senate, Harry Reid (D-NV), is surely reveling in the retrospective of his underhanded-yet-timely use of the so-called “nuclear option” on Senate confirmations of judicial appointees. We detailed this blatant power-at-all-costs move by the Democrats back in November. Even then, everyone knew Reid’s motive: Provide a way for Barack Obama to pack the nation’s second most powerful court, the U.S. Court of Appeals for the DC Circuit that will hear most challenges to ObamaCare.

Thursday, that newly packed court bore its first fruit for the not-so-good senator in deciding to rehear Halbig v. Burwell. That was a July decision from a three-judge panel of the court’s members that ruled the plain language of the Patient Protection and Affordable Care Act (a.k.a. “ObamaCare”) essentially kills the end-run the Obama administration had hoped to pull on the execution of its own law. Team Tyranny would have cut all states out of the decision loop for implementing ObamaCare and circumvented defensive actions by 36 states that lawfully (under the statute) refused to establish the administrative frameworks for ObamaCare’s egregious wealth transfer scheme. We described that end run attempt over a month ago and predicted yet another soon to come: “We should expect the next move to be to ask for an en banc ruling (i.e., a ruling from the entire [packed] DC court) to overturn the three-judge ruling.” Sure enough, that was the next move of this lawless White House. They requested – and were granted – the rehearing.

Never mind that an en banc review by the DC Circuit is an extreme rarity, or that no real basis for the rehearing was offered beyond the case being “very important,” or that panel member Judge Harry Edwards had strongly advocated up until this point against en banc rehearings because of their substantial draw on court resources and potentially divisive impact among the court’s members. This would be the same Judge Edwards who spewed vitriol at plaintiffs’ counsel during oral arguments, angry that they were trying to “gut the statute,” and who openly questioned the plaintiffs’ motives in his dissenting opinion. Both moves were – well, let’s just say highly unusual for a sitting circuit court judge, and we’ll leave it at that. In any case, none of these facts apparently mattered: The decision will be reheard by the full 13-member court.

No, what really mattered on the rehearing decision was that Reid’s House-of-Cards-like behavior back in November changed the basic makeup of the DC Circuit with the addition of three Democrat appointees, so that it’s now composed of five Republican appointees and eight Democrat ones. Clearly, the Obama administration hopes to thwart – through lower, less-visible, more politically malleable courts like that of the DC Circuit – attempts to bring substantive issues underlying Halbig and related cases to review by the U.S. Supreme Court.

Ultimately, we believe the ObamaCare dike has too many holes in it to hold up in the long term. The statists in the White House believe this, too, whether or not they admit it. That’s why they’re bent on stalling in the interim, in hopes that – like the welfare gravy train of LBJ’s “Great Society” – the intoxicating impact of “free-money” subsidies from the federal government will begin to move public opinion and render the question of the lawfulness of ObamaCare irrelevant.

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