Friday, November 17, 2017

Senate Makes Bold Move, Includes Repeal of Obamacare’s Individual Mandate in Tax Bill

News broke on Tuesday that the Senate will include repeal of Obamacare’s individual mandate in its final tax bill.

This is something President Donald Trump has called for, and it’s exactly the right move.

It’s critical that Congress take every opportunity to undo Obamacare’s damage. Repealing the individual mandate is a great place to begin the necessary work of undoing Obamacare regulatory burdens and tax increases that have driven up costs and reduced plan value and availability .

The individual mandate is Obamacare’s requirement that every American enroll in health insurance or be fined. The idea was to push lots of healthier people—who didn’t need or want Obamacare’s expansive, overpriced coverage—to buy those plans in order to subsidize the cost of care for others.

But the experience with Obamacare over the last four years shows that the individual mandate does not work.

According to the most recent IRS reports, 6.2 million tax filers chose to pay the tax penalty rather than buy Obamacare insurance, 12.7 million tax filers obtained an exemption from the mandate, and 4.3 million tax filers omitted their health insurance status on their tax return.

In total, 23.2 million tax filers paid the fine, obtained an exception, or simply ignored the individual mandate.

And with good reason—the products they were being forced to buy were from a private market broken by Obamacare’s many regulatory mandates. Plan prices skyrocketed and plan quality and availability dropped.

In the face of this situation, many Americans had to choose: Do I buy an overpriced product that doesn’t meet my needs, or do I pay a tax penalty and look for other alternatives?

With costs for plans continuing to rise, and possibly outpacing the ability of individuals to pay, it’s likely that a growing number of individuals will determine that it’s better to pay the penalty than pay for overpriced coverage.

And pay they will. Until now, the IRS has been lax in its enforcement of the mandate. However, this upcoming tax year the IRS will begin to actively enforce the individual mandate by requiring proof of health insurance coverage.

In previous years, Americans have been able to omit reporting health care coverage and still receive a tax refund. No longer will this be the case.

Moving forward, the IRS will refuse the submission of a tax return unless it includes proof of coverage, a coverage exemption, or payment (read: tax) for lack of coverage.

Repealing the individual mandate would provide relief to millions of Americans who have to either buy a health insurance product they don’t want, or pay tax penalties.

It’s possible that coverage numbers would go down at least somewhat after repealing the individual mandate. But that wouldn’t be because people are being kicked off of coverage. It would be because some Americans will either drop plans that are a bad deal for them, or not buy those plans in the first place.

Rather than forcing people to buy coverage that government bureaucrats think they should have, lawmakers should focus on creating market conditions that allow Americans to buy plans that they actually want.

That requires Congress to roll back the broken Obamacare regulations that are driving up the cost of insurance for millions of Americans—including the benefit mandates, actuarial value standards, and rating restrictions that drive up the cost of premiums.

Moreover, if Congress wants to encourage people to buy coverage rather than force them to do so, it could provide regulatory relief to the states to give them options to reward healthy individuals for buying and keeping continuous coverage.

Congressional leaders need to get back to work to undo Obamacare’s damage, and the Senate is leading the way by placing the individual mandate on the chopping block.



Wave of Judicial Appointments Fulfills Trump Promise to Focus on Courts

Eight federal appellate judges confirmed, and a ninth on the way, mark the success of President Donald Trump's campaign promise to make putting conservatives on the court a top priority of his administration.

Trump's eight appellate court appointments are the most this early in a presidency since Richard Nixon, the New York Times reported.

The appointments are the product of an aggressive strategy led by White House counsel Don McGahn. McGahn and his team have focused on filling appeals court vacancies where Democratic Senators from Trump-voting states could be pressured to back nominees.

Senate Judiciary Committee Sen. Chuck Grassley (R., Iowa) has also been essential to the fast clip of nominations. In the past year, Grassley has organized three hearings with two appellate nominees, rather than the customary single nominee. Two-nominee hearings happened only three times total in the eight years of the Obama administration.

The nominees have strong academic credentials, the Times noted, as well as a history of clerking for conservative judges like the late Justice Antonin Scalia.

"We will set records in terms of the number of judges," Trump said in a recent White House speech. "There has never been anything like what we’ve been able to do together with judges."

"What makes this a unique opportunity in modern history is the sheer number of vacancies, the number of potential vacancies because of the aging bench, and the existence of a president who really cares about this issue in his gut," said Leonard A. Leo, executive vice president of the conservative law organization the Federalist Society, and an adviser on Trump's judicial appointments.

Trump entered office with 21 open seats on the federal appellate courts. That high number of vacancies was driven by Senate Republicans' refusal to confirm many appointees of President Barack Obama from 2015 onwards.

An additional six judgeships have opened since inauguration. Additionally, almost half the 150 active appeals court judges can take a semiretirement "senior" status, freeing up their seats for Trump-appointed replacements.

Exit polls suggest that conservatives concerned about the future of federal courts helped deliver Trump his electoral college victory last November. In the wake of Scalia’s death, Trump memorably promised to nominate his replacement from a list put together by the Federalist Society.

The burst of nominations has provoked controversy as Senate Republicans consider dropping several traditional practices.

That includes the use of so-called "blue slips," issued by Senators from the home state of a judicial nominee to give their assent before he proceeds to hearings. Democratic senators, including Sen. Al Franken (Minn.), have refused to return blue slips for several Trump nominees.

This has resulted in calls by Republicans to end the practice. They have also been critical of the American Bar Association, which customarily rates the qualification of judicial nominees, and which is perceived by many as being biased against conservatives. After the ABA returned "not qualified" rankings for two nominees, reports indicated that the White House is considering discouraging future nominees from releasing certain records to or interviewing with the group.

While these possible changes may be controversial, advisers like Leo remain focused on their central goal—taking advantage of an unprecedented opportunity to put conservatives on the bench.

"[Trump] understood that the American people cared about judges, and he for his own purposes cared very deeply about it and recognized that he could be a president who could help restore the judiciary to its proper role," Leo said.



Louisiana’s Kyle Duncan, Trump’s Superb Choice for the 5th Circuit

Ed Meese

A legal powerhouse from Louisiana with a history of championing religious freedom is among President Donald Trump’s outstanding nominees for federal judgeships.

Kyle Duncan is one of Trump’s excellent picks for the 5th U.S. Circuit Court of Appeals as the president works to reshape the federal courts by announcing slate after slate of his choices to fill more than 160 vacancies across the country. These are men and women who take the Constitution and the rule of law seriously, and Duncan is a superb example.

I got to know Duncan when he was general counsel of Becket Law, a nationally recognized public interest law firm based in Washington, and I am confident he will be a dedicated and thoughtful jurist. He understands the proper, limited role judges should play in our government—that judges are not supposed to be legislators, but impartial arbiters of the law.

Duncan will be committed to interpreting the Constitution and laws according to their text, setting aside his personal views and policy preferences.

At Becket, Duncan fought for religious liberty for all people. As the lead lawyer in Hobby Lobby’s challenge to the Obamacare contraceptive mandate, he secured a big victory for religious freedom at the U.S. Supreme Court.

Hobby Lobby, a retail chain run by David Green and his family, sought to operate in accordance with the family’s Christian faith. But Duncan didn’t represent only Christians. He supervised Becket’s representation of an Orthodox Jewish inmate when a prison violated his rights under the Religious Land Use and Institutionalized Persons Act, and he helped defend a mosque under the same law when it faced a discriminatory land-use regulation.

Stuart Kyle Duncan, who was born in 1972 in Baton Rouge, Louisiana, has had a distinguished legal career as an appellate lawyer, arguing more than 30 cases before federal and state appellate courts—including two at the U.S. Supreme Court.

Currently a partner at Schaerr Duncan LLP in Washington, Duncan has served as counsel for parties and amici in more than 40 cases before the high court. For his exceptional written advocacy there, the National Association of Attorneys General twice presented him with its Best Brief Award.

It’s fitting that the president nominated Duncan to a 5th Circuit seat in Louisiana, where he has deep ties. He received his undergraduate and law degrees from Louisiana State University, clerked for a judge on the New Orleans-based 5th Circuit, and for four years was Louisiana’s first solicitor general.

Even after starting his law practice in Washington, Duncan continued to advance Louisiana’s interests. The state retained him time and time again to help defend its laws on everything from abortion to religious freedom to criminal offenses.

In addition to Louisiana, the 5th Circuit hears cases from Texas and Mississippi, and Duncan has ties to those states as well. He was assistant solicitor general of Texas for three years and taught constitutional law, law and economics, admiralty law, and legal ethics at the University of Mississippi School of Law.

Duncan’s record demonstrates that he is an exceptionally qualified nominee who cares a great deal about the Constitution. As Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, put it at National Review, he

is a superstar who can translate sophisticated arguments for the general public. His knack for thoughtful and incisive legal analysis will serve him well on the 5th Circuit, as will his humility and integrity. Kyle is the complete package.

To date, the Senate has confirmed only 13 of Trump’s outstanding judicial nominees, including Supreme Court Justice Neil Gorsuch. While Senate Majority Leader Mitch McConnell should be commended for getting those judges confirmed despite Senate Democrats’ obstruction, there is still plenty of work to do.

The president could do no better than nominating Kyle Duncan. Now, the Senate must work swiftly to confirm him.



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