Simon Lazarus

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.

  • March 8, 2017
    Guest Post

    by Simon Lazarus, Senior Counsel to the Constitutional Accountability Center

    Wells Fargo’s bogus accounts mega-fraud enabled consumer champions to spotlight the permissive legal environment that led the bank’s top management to believe they could get away with it. In congressional hearings, Democrats in particular pressed Wells CEO John Stumpf on the bank’s use of mandatory arbitration clauses in their standard-form, non-negotiable contracts. Such clauses typically force consumers and employees to sign away their rights to challenge any form of company illegality in court, or to band together with other victims to seek class relief from small-bore, large-scale fraud like that perpetrated by Wells Fargo. After the Senate hearing, six Senate Democrats observed in a letter to Stumpf, that “There can be little doubt . . . that the ability to force customers into secret arbitration proceedings allowed Wells Fargo to continue its outrageous practices with impunity for far too long.”

    Now, with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, and Senate Judiciary Committee hearings set for March 20, a new opportunity looms to further bump up awareness of the real-world impact of the judiciary’s pro-industry tilt, and, especially, the role of the conservative bloc of high court justices in fostering that lax environment. In particular, senators can probe the pattern of Judge Gorsuch’s opinions favoring business litigants over individual consumers and workers that has led business legal advocates to read his record to “suggest that his confirmation would restore the pro-arbitration direction of the Court [before Justice Scalia’s death cost the conservatives their majority]).”

  • July 18, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Republicans in the U.S. House of Representatives – undaunted despite having come up short for six years with ceaseless efforts to kill or maim the Affordable Care Act – struck again, on Thursday, July 7, and Friday, July 8, with back-to-back hearings in two separate committees. As touted in the headline of their joint press release, the two committees – Ways & Means and Energy & Commerce – sought to “Highlight Obama Admin’s Unprecedented Obstruction to Withhold Facts On Billions In Illegal Obamacare Payments.” 

    The purported occasion for the redundant hearings was the release of a 158 page “investigative report” amplifying House Republicans’ claim that the Administration has funded the ACA “Cost-Sharing Reduction” program without a “constitutionally required appropriation from Congress.”  The cost-sharing reduction (CSR) program currently helps 6.4 million lower income individuals to afford deductibles, co-pays, and co-insurance prerequisites for purchasing health care services and products. Many of these individuals could not afford health care, and therefore might forego buying buy health insurance without it, antithetical to the outcome the ACA was designed to produce.

    The CSR subsidies work in tandem with the ACA tax credit program subsidizing insurance premiums, which the Supreme Court held applicable nationwide one year ago in King v. Burwell, rejecting a high-profile lawsuit by anti-ACA activists. If successful, that lawsuit would have barred the premium assistance tax credits in the 30+ states with exchange marketplaces managed by the federal government, rather than by the state on its own.  

    Much like that failed legal challenge, the committees’ attack on the complementary CSR program, itself the subject of an unprecedented lawsuit by the House Republican majority now pending in the D.C. Circuit Court of Appeals, promotes two persistent partisan objectives: to render the ACA dysfunctional, and to reiterate Republicans’ chestnut that President Obama constantly breaches his legal authority, violating his constitutional obligation to “take care that the laws be faithfully executed.” 

  • May 16, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center. Simon Lazarus helped draft an amici curiae brief in House of Representatives v. Burwell, filed by CAC on behalf of House Minority Leader Nancy Pelosi and other members of the Democratic Caucus, in support of the Administration.

    On Thursday afternoon, May 12, District of Columbia District Judge Rosemary Collyer ruled unconstitutional the Obama administration’s funding of “cost-sharing reduction” subsidies (CSRs) prescribed by Section 1402 of the Affordable Care Act (ACA), to complement the “premium assistance tax credits” prescribed by Section 1401, by assisting lower-income exchange subscribers to pay for medical services and products. According to an Avelere health study, at least 65 percent of all Obama enrollees are eligible for the subsidies, and 5.9 million people currently use them. The decision upheld a lawsuit filed in November 2014 by the House of Representatives, alleging that Congress had not enacted an appropriation covering the COS subsidies, and hence, the administration’s funding of them violated the constitutional command that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

    When then-Speaker John Boehner first proposed the lawsuit in July 2014, a broad consensus of experts warned, in the words of former House legal counsel (for Congresses controlled by both parties) Charles Tiefer, that “it is a bad idea for a Speaker to file such an embarrassing loser.” Nonpartisan experts like Tiefer knew, as he wrote in testimony submitted to the House Rules Committee considering Boehner’s resolution to file the case, that applicable Supreme Court precedents dictated “no standing . . . for anything remotely like” the House’s lawsuit.

    No good would be served here by restating the precedents that Judge Collyer chose to disregard or, as she put it, distinguish and limit. Briefs filed by the Department of Justice and allied amici have done that job, and will surely repeat when the case is appealed to the D.C. Circuit. But it is worth briefly spelling out the real-world consequences of Judge Collyer’s arguments purporting to distinguish pertinent standing doctrine, in light of the separation of powers policy considerations undergirding established congressional standing limitations.

    In sum, given the political dynamics of inter- and, especially with respect to Congress, intra-branch behavior patterns and incentives, displacing those precedents in accord with Judge Collyer’s decision will provide irresistible incentives – for one house of Congress or, more realistically, internal factions with political leverage – to trigger lawsuits over a virtually limitless array of inter-branch or partisan disputes previously resolved through political processes, formal and informal.

  • May 29, 2014
    Guest Post

    By Simon Lazarus, Senior Counsel at Constitutional Accountability Centerfrequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.

    *This piece is cross-posted on Constitutional Accountability Center's blog

    Media battalions daily eye-ball every spike and dip in the Affordable Care Act’s implementation odyssey. On May 14, however, nearly to a person, they passed up a noteworthy event: a Fourth Circuit Court of Appeals hearing in Richmond, Virginia, involving one of a phalanx of Koch-backed lawsuits, that could, if successful, in the exuberant vernacular of columnist George Will, “blow [the ACA] to smithereens.” Much has been written about these cases, by ourselves and others, since conservative uber-litigator Michael Carvin filed in the District Court for the District of Columbia a complaint identical to the (subsequent) one at issue in the recent Fourth Circuit appeal. (Two other similar challenges are percolating in Federal district (trial) courts in Oklahoma and Indiana.) But, unnoticed by the press, in this recent hearing, high-voltage verbal duels broke new ground.

    Visibly animated, two of the three judges on the Fourth Circuit panel not only skewered the legal basis for the lawsuit—as had the two federal trial judges who earlier this year dismissed the claim (in the case now before the Fourth Circuit appeals court and the earlier-filed D.C. case). They questioned, as a matter of political and social injustice, Carvin and his backers’ desperation attempt to upend the ACA. In particular, Judge Andre Davis fired off one of the most telling sound-bites yet articulated by the law’s defenders over the course of this litigation. “You are asking us,” Judge Davis capped off an especially testy exchange near the end of the session, “to kick millions of Americans off health insurance, just to save four people [Carvin’s four individual plaintiffs] a few dollars.”  Davis had earlier foreshadowed that zinger, interrupting Carvin soon after he launched his argument, to chide him for bringing his case on behalf of four lone individuals instead of as a class action on behalf of all similarly reluctant premium assistance beneficiaries; the judge suggested that in fact Carvin could never assemble such a broad class: “No one wants what you want,” he scolded.