By DAVID B. RIVKIN JR., ELIZABETH PRICE FOLEY, Los Angeles Times, June 29, 2015

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.

Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “[e]xchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”

As Justice Antonin Scalia’s dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.

Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”

Scalia observes that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass,” the majority claims that when the court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”
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By DAVID RIVKIN and ELIZABETH PRICE FOLEY, March 11, 2015

Last Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act (ACA). The case centers on a provision of Obamacare that authorizes federal tax subsidies for individuals only if they purchase health insurance through an “Exchange established by the State.” If an individual purchases insurance through a federal-run exchange (in the event that the state opts out of setting up its own exchange), can she still qualify for Obamacare subsidies? The Obama administration says yes; the King plaintiffs say no. 

A great deal is at stake here. If the plaintiffs win, individuals in 34 states—the states that have opted not to operate a state insurance exchange—will still be subject to Obamacare’s individual mandate, but they won’t qualify for federal tax subsidies. As a result, their insurance will cost more out-of-pocket. Moreover, because individuals in these 34 states won’t get tax subsidies, employers in these states won’t be subject to the employer mandate, so they won’t have to offer health insurance and can’t be taxed for failing to do so. And yet, those states would be able to continue registering their profound opposition to the entirety of the Obamacare regulatory scheme, thereby undermining its legitimacy. Given these consequences, supporters of Obamacare are pulling out all the stops to prevent a plaintiffs’ victory.

One recent attempt to save tax subsidies in these 34 states has come from an amicus brief filed on behalf of four law professors, two of whom are former clerks to Justice Ruth Bader Ginsburg. During the King oral arguments, it became apparent that their argument had found favor with Ginsburg and three other liberal justices and had gained some traction with the court’s centrist, Justice Anthony Kennedy.

Ironically, the centerpiece of their argument is federalism—the division of powers between state and federal governments—a concept that, while a key part of the Constitution’s separation of powers architecture, is not particularly favored by liberals. Specifically, the law professors’ claim that the court should rule in favor of the Obama administration by invoking the “clear statement rule,” a legal doctrine designed to protect state sovereignty.

However, applying this rule to the King case would be unprecedented and deeply antithetical to federalism. Read more »

Transcript of David Rivkin’s appearance on Bill Bennett’s Morning in America radio show on November 18, 2013.

BILL BENNETT: David, it looks like the President lied [when he said], “if you like your plan you can keep it.” Is there any way to take legal action against the President’s administration or HHS [Dept. of Health and Human Services] for this deception?

DAVID RIVKIN: Well no, if somebody in the private sector has done that, there will be all sorts of criminal and civil options, but you cannot prosecute the President under any of those statutes. The price that he has to pay is the political price and, unfortunately, he’s not going to pay the full price, given the way the media and national Democrats are looking at it. It also, frankly, further undermines the trust of the American people in the government.
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David Rivkin appeared on the Opinion Journal Live to further discuss his previous Wall Street Journal article that explained President Obama’s suspension of the ObamaCare employer mandate.  Specifically, in the video Rivkin spoke about how this suspension will open the door to millions of Americans incurring a legal standing to sue.

To watch the video directly on the Opinion Journal, CLICK HERE >>

By: David B. Rivkin Jr. and Lee A. Casey

President Obama’s announcement on July 2 that he is suspending the Affordable Care Act’s employer health-insurance mandate may well have exposed his actions to judicial review—even though that is clearly what he sought to avoid.

The health-care reform law’s employer mandate requires businesses with more than 50 employees to provide a congressionally prescribed set of health-insurance benefits or pay a penalty calculated at about $2,000 per employee. The law was to take effect on Jan. 1, 2014, but Mr. Obama has “postponed” its application until 2015. His aim, the administration said, was to give employers more time to comply with the new rules. But it was also seen as a way to avoid paying at least part of ObamaCare’s mounting political price in the 2014 congressional elections.

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David Rivkin appeared on Bloomberg TV with infectious disease and public health specialist Celine Gounder, and Bloomberg’s Shannon Pettypiece and Pimm Fox to talk about the future of Medicaid expansion and the Affordable Care Act.

To watch the entire clip on Bloomberg TV, CLICK HERE >>