Another ObamaCare Surprise - Smokers Can Suck It

The AP describes another ObamaCare landmine:

Penalty could keep smokers out of health overhaul

WASHINGTON (AP) — Millions of smokers could be priced out of health insurance because of tobacco penalties in President Barack Obama's health care law, according to experts who are just now teasing out the potential impact of a little-noted provision in the massive legislation.

The Affordable Care Act — "Obamacare" to its detractors — allows health insurers to charge smokers buying individual policies up to 50 percent higher premiums starting next Jan. 1.

For a 55-year-old smoker, the penalty could reach nearly $4,250 a year. A 60-year-old could wind up paying nearly $5,100 on top of premiums.

And the government won't help help subsidize those penalties, or taxes, or whatever they are:

Several provisions in the federal health care law work together to leave older smokers with a bleak set of financial options, said Pollitz, formerly deputy director of the Office of Consumer Support in the federal Health and Human Services Department.

First, the law allows insurers to charge older adults up to three times as much as their youngest customers.

Second, the law allows insurers to levy the full 50 percent penalty on older smokers while charging less to younger ones.

And finally, government tax credits that will be available to help pay premiums cannot be used to offset the cost of penalties for smokers.

As the story notes, lower income and less formal education is positively associated with more smoking. In other contexts, these are the groups to which Obama is trying to shovel more Federal money.

Well, we had to pass the bill to find out what's in it.

Comments

[Peter]

I am guessing 2055. that is when the American people will figure out what a mistake it was to elect Obama.

[steve]

This is actually one provision I like. If someone wants to smoke, let them pay the actuarially based higher costs of insurance... and without using my tax dollars to help subsidize their habit.

[Threadkiller]

What a drag.

[Janet]

next up (via Instapundit)...Shaming fat people into losing weight is the only way to solve obesity epidemic, leading health academic claims.

"Daniel Callahan, the 82-year-old president emeritus of The Hastings Center a New York think-tank specializing in health policy ethics, calls for increased stigmatization of obese people to try spur weight-loss across America.

The senior research scholar says fat people should be treated like smokers who have become increasingly demonized in recent years and thus ‘nudged’ by negative attitudes of those around them into giving up the unhealthy habit. . . .

They need to be leaned upon, nudged, and—when politically feasible—helped by regulations to understand that they are potentially in trouble. They should not want to be that way, nor should others.’ he writes."

and I believe Holder talked about treating gun owners like smokers too.

Will gay men be charged a 50% higher rate for engaging in sodomy? That's a big known health risk. Nah...never mind. I know the answer.

[matt]

I laughed when they announced this yesterday. Just one more land mine in a law nobody read carefully. One of the functions of health insurance is to average out the cost per individual.

One could argue that People prone to diabetes, or cancer, or alcoholism could be screened in the same way. As far as I know, many insurance companies already screen for smokers. Now it's a mandate, not am option, and I don't like the government extending its interference in the private sector.

But it's going to piss off the hipsters royally.

[hit and run]

AP:
The Affordable Care Act — "Obamacare" to its detractors —

“I have no problem with people saying Obamacare. I do care!"
--stuff Obama said starting back in 2011

[Danube of Thought iPad]

"First, the law allows insurers to charge older adults up to three times as much as their youngest customers.

"Second, the law allows insurers to levy the full 50 percent penalty on older smokers while charging less to younger ones."

Why on earth couldn't they do so before?

[Thomas Collins]

How is smoking defined? Do potheads slide by? What about those who engage in unprotected anal sex? Or a variety of other activities challenging to one's health? This provision clearly has nothing to do with real costs imposed upon the system, and everything to do with the fact that smoking is currently un-PC.

I guess 16 ounce soda drinkers are OK until Bloomberg becomes POTUS and rams an anti-sugar provision through Congress.

[henry]

Just a toe in the door for the gun-owner premium.

[Thomas Collins]

DOT, even if in the pre-ObamaCare era insurers could make these actuarial distinctions, doesn't ObamaCare substantially limit the kind of actuarial distinctions that insurers may make (for example, pre-existing conditions)?

[Captain Hate]

Let premiums be based on every question the Red Cross asks when you give blood.

[Thomas Collins]

And Gaia-forbid, henry, that one be a gun owner and homeschool one's kids. There will be a super-premium for that type of reckless behavior.

[marlene]

How many cups of coffee? How many glasses of wine? How much exercise? These are questions asked by health care providers now.
When Obamacare is fully implemented,the doctors will be quasi-government bureaucrats,then what will they be required to ask? How did you vote in the last election? What a nightmare!

[Thomas Collins]

Let them impose whatever premiums they want, marlene, as long as I get credits for all those Zumba classes I took in Maine. Boy, those were great cardio workouts! :-))

[James D.]

The point that most people who support this kind of thing (or Nanny bloomberg's anti-sida crusade, or the jackass Janet cited above who wants to make shaming fat people official government policy) don't ever consider is that, sooner or later, the nannies are going to get around to whatever it is THEY do that's unhealthy or in any way potentially increases health care costs.

[NK]

"When Obamacare is fully implemented,the doctors will be quasi-government bureaucrats,then what will they be required to ask?" and what is the penalty for lying? is the penalty the same for the 'rich' as well as poor people. Will Obamacare disavow coverage?

[Peter]

You'll get no credits-- only penalties; unless a Zumba participants special interest group looks like a likely source of Dem votes.

[Danube of Thought]

doesn't ObamaCare substantially limit the kind of actuarial distinctions that insurers may make

Absolutely. But remember, "Itt's a government takeover" was Politifact's "Lie of the Year."

[hit and run]

Speaking of Zumba...

A Maine judge has dropped most of the charges against a figure in a prostitution scandal centered on a Zumba studio in Kennebunk.

Justice Nancy Mills on Friday dismissed 46 of 59 misdemeanor counts against Mark Strong Sr., a day after the state's highest court ruled the closed jury selection process had to be opened to the public.

[Janet]

from the shaming fat people link - " In a controversial article, Daniel Callahan,the 82-year-old president emeritus of The Hastings Center a New York think-tank specializing in health policy ethics, calls for increased stigmatization of obese people to try spur weight-loss across America."

bold mine.

[marlene]

I was just going to mention that h&r! The jury selection has been going slowly,because if you live in this state,and haven't heard about this case,forget being low information,you must be living under a rock!

[NK]

The nannies and social engineering through Obamacare-- yes a grave risk. Imposing higher health coverage costs on gun owners will be one way. BUT-- ironies will abound. The nannies will run into the fact that the productive classes generally do the right things in terms of health, diet exercise, no smoking, moderate alchohol-- and that Obama/Dem voters skew much more towards the VERBOTEN conduct-- morbidly obese, Type B diabetes, smoking, alchoholism-- and of course anal sodomy. I guess the Nannies shove all fat, smoker, drunk working class voters into Medicaid-- they do already-- and cover them that way. Lord of the Flies meets 1984 stuff.

[henry]

OT- WI surplus now estimated at $488 million. Walker wants to reduce taxes, the Dems want to reflate the unions. Can we have a premium surcharge for voting to raise taxes? It raises my blood pressure when they do that.

(If you go to the full WISPOLITICS Budget blog, all reactions are noted).

[Danube of Thought]

I am guessing 2055. that is when the American people will figure out what a mistake it was to elect Obama.

Not likely. They won't know what they're missing, and will be grateful to the government for all the free stuff. They'll make no connection between the Obama era and continuously declining living standards and anemic economic growth. Do the Greeks think they made a mistake? No, they riot for free stuff.

[Peter]

I think we should stigmatize 82 year old men who lead think tanks on who should be stigmatized.

[Appalled]

Of course, the smoking penalty is a massive incentive to lie. And how is "smoker" defined? Does it include people who have quit recently? What steps are going to be taken to investigate a claim that you are a non-smoker.

Meanwhile, over at Deathless Dialog today, we catch an unintended consequence just waiting to happen in some Medicare reforms suggested by Orrin Hatch, which apparently have a good deal of bipartisan support.

http://deathlessdialog.blogspot.com/2013/01/the-bipartisans-want-your-medigap.html

[Janet]

It is hard to believe that we have people that go to foreign countries to have sex with underage kids, deciding what WE have to obey.

[Janet]

THat's right Appalled. I quit, but I still smoke sometimes...like Obama!

[rse]

DOT-that would be true if the Admin had not hubristically put such goals in a document called the Belmont Challenge that they put out in 2011 in it final form.

It is very graphic on our learning to make relationships more important than goods. And ensuring a minimal quality of life for all. And deriving our satisfactions from the well-being of all. I may have started my journey to that doc overseas but unlike many I have it was here. And the name Belmont comes from the original meetings at the Belmont House in Maryland in 2009.

[Danube of Thought]

Wahoo:

WASHINGTON -- A federal appeals court has ruled that President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel. The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments earlier this year to the National Labor Relations Board. Obama claims he acted properly because the Senate was away for the holidays. But the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called "pro forma" sessions.

[Old Lurker]

Ha.

Fed DC Appeals Court says Obama NLRB appointments were illegal because the Senate was technically in session.

[Old Lurker]

Great minds DoT

[Threadkiller]

Will the Court's ruling unwind anything?

[Danube of Thought]

You got it, OL. Nice to see a court actually recognize some limits on this asshole's power.

[peter]

and what of pot smokers? are they smokers? or are they a protected class because they almost always vote for dems, if they can get to the polling booth on the right day

[Frau Regentropfen]

Obama court call? What now? Who will rap the preezy's knuckles?

[Janet]

Well, this smoker is off to the March for Life. See you guys later....

[AliceH]

Fwiw.. When I had health insurance as an employee benefit, I never had to provide any info on soking or weight etc. Premiums were set by 'group rate' negotiations w the provider and all "lifestyle risks" were no doubt applied via statistical avgs.

I was asked many many questions when I moved to an individual policy. Honest answer re Smoking did increase my rate - maybe by $10/month or so.

[centralcal]

Wash. Free Beacon ‏@FreeBeacon

NLRB ruling could reverse far more than the appointments http://wfb.tc/14dx0qv

[Neo]

Federal Appeals Court says that Obama's NLRB "recess" appointments are un-Constitutional.

This should screw-up every meeting, every decision that has been made for about the last year (i.e. total chaos).

LUN

[centralcal]

Looks like the same Court will hear a separate case on the Cordray appointment - made at the same time and in the same manner.

Also, I was glad to see their ruling on NLRB was unanimous

[Kat]

I finally figured out how the Affordable Care Act will be affordable. Imagine your mandatory annual wellness checkup after ACA is fully implemented.
Doctor: do you or anybody in your household own guns?
Patient: No
D: do you smoke or use any tobacco products?
P:no
D: do you drink alcohol?
P: no
D: do you drink any beverages with sugar? Here is a list of drinks that we do not recommend
P: no
D: do you exercise?
P: yes, 5 times a week
D: looking at your patient profile you may be recommended for blood test/breast cancer/ prostate cancer etc. screening. I must inform you that if taking this option will raise your insurance premium by $50,000 a year. Do you wish to schedule a test?
P: no

After few years costs of medical care will drop like a rocket, nobody will be sick and,additional bonus, social security will become fully founded again.

[Neo]

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.
LUN

[NK]

Good win for the good guys in the DC Circuit-- very good. Shot across the Obamaniacs bow regarding GUNZ and CO2 regs, and other POTUS actions without Congressional approval. The DC Circuit-- this panel anyway takes separation of powers seriously. Good win.

[Threadkiller]

From ccal's link:

The court has placed a stay on its order, as it expects appeals to be filed, but the decision could reverse far more than recess power. In addition to invalidating the appointments of board members Richard Griffin and Sharon Block, it could also undo dozens of decisions issued since they joined the board, including controversial rulings that expanded union power to collect dues from non-members. The decisions would not be automatically vacated. “Anybody who appeals to the D.C. circuit can have the [NLRB] decision vacated … the parties still have to file appeals,” Taubman said.

[Kat]

So, the appointments are unconstitutional. When minor inconvenience like that ever stop this administration?

[pagar]

Are we to conclude from the court ruling that things have gotten so confused in Washington that the Obama regime is unable to tell rather the US Senate is in session or not?
------------------------------------------

"Saxby Chambliss won't run for re-election. The U.S. senator from Georgia will announce this morning that he's dropping plans to run for a third term in 2014. "

I was unable to remember which political party was affected so I did a search at ajc.com

The first entry reads:

Advertisements
Us Senators From Georgia
Find US Senators at Great Prices.
www.Pronto.com

[Threadkiller]

"It is ORDERED, on the court's own motion, that the Clerk withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. This instruction to the Clerk is without prejudice to the right of any party to move for expedited issuance of the mandate for good cause shown."

http://freebeacon.com/wp-content/uploads/2013/01/DECISION-DC-Cir-Noel-Canning-Order-staying-mandate.pdf

Translation please

[NK]

The DC Circuit-- is basically the Supreme Court for regulatory and separation of powers law. Since Reagan (at least), the DC Circuit has decided many disputes between the Congress and POTUS concerning the extent of POTUS power to do things through agency rulemaking, without Congressional action. As HRH Barry I has made clear he intends to 'do' things without Congress, the DC Circuit will become a very important place to stop Barry's Royal Decrees. This is a good win.

[Threadkiller]

It seems that a "stay" under Fed Rules usually does not exceed 90 days.

http://www.law.cornell.edu/rules/frap/rule_41

Let's hope there is a move to expedite.

[NK]

Translation-- HRH Barry I will ask for a re-hearing of the case by the ENTIRE DC Circuit Court-- ALL of the Judges En Banc-- not just this 3 judge panel. So this decision is 'stayed' not enforceable, until after the En Banc DC Circuit decides what to do-- re-hear the case and decide it En Banc, or reject En Banc re-hearing and endorse this 3 judge panel decision. This is the regular practice of DC Circuit panels when one decides a separation of powers fight between the POTUS and Congress. Clarice F would be the JOM expert on that Court's practice and procedures.

[Kat]

Can somebody explain Who and How will make the administration to obey this ruling?

[matt]

Obama defense:

"badges? We don't need no steenking badges!"

[Captain Hate]

You got it, OL. Nice to see a court actually recognize some limits on this asshole's power.

This is the best news I've heard since early November.

[NK]

When the stay is lifted-- anyone-- who was negatively affected by any NLRB action that used the illegal appointees votes can move in District Court to vacate the NLRB action. So any union member who has to be dues or any employer eho has to collect dues and pay over to unions because NLRB action/decision was based on illegal member votes. Basically, if upheld En banc-- this ruling allows employers and union members to undo the obnoxious things the Obama NLRB appointees did. A good win. And if upheld En Banc-- a great win to show the Obamaniacs that the DC Circuit takes separation of powers seriously-- this isn't Venezuela-- yet.

[Thomas Collins]

Re the DC Circuit's "no-recess" appointment decision: Wasn't the current head of the Consumer Financial Protection Bureau appointed under the same circumstances?

[Captain Hate]

NLRB ruling could reverse far more than the appointments

I think the Washington Monument just got shoved up Richard Cordray's pansy ass

[NK]

Cordray-- I believe so-- melR would know for sure.

[Thomas Collins]

Ed Markey may have some competition in the Dem primary for the Mr. Teresa Heinz Senate seat. See LUN.

[Captain Hate]

I looked at that link, TC. Why can Scottie Centerfold only poll well in special elections and then lose regular ones badly to an obvious grifter?

[NK]

Ed Markey-- hope he wins the Primary and loses the election to Scottie Centerfold. Markey is both a moron and malevolent. A rare-- fortunately-- combination.

[matt]

It's funny. No one is wrapping up the week's events into a compelling narrative. We just had the most Leftist inauguration speech in our history; We then find that the president wants to destroy the Republican Party; We are also now coming to grips with what a complete asshole he is in negotiations.

Woodward's book described a narcissistic egomaniac who won't listen to others, including his own party. This theme has arisen time and again among various reports.

He is now engaged in the gun grab; stealthy and possible extralegal bureaucratic policies on a whole range of issues, an administration policy of using false e mail addresses, executive privilege, stonewalling, and edicts and yet he is still the messiah to the muddle.

Time and again he seeks to hide in the background and slip away from being held accountable for any of his actions.

And yet there seems to be no real voice that says, "wait a minute; this guy is trashing the Constitution. He is polarizing the country beyond anything we have ever experienced. Our standard of living has declined."

This isn't rocket science. Enough valid points have been made but there has been no schwerpunkt where it has blown up in his face. Why? Are we that corrupt and dishonest as a culture?

[centralcal]

TC and NK - as I posted above, Cordray's appointment is before the same Court, in a separate case.

[MarkO]

I understand the defense to be "What difference does it make?"

[Thomas Collins]

CH, as to the actual election results, the Dem urban vote turnout (Boston, Worcester, Springfield) was not that great when Brown bested Coakley. Warren was helped by the turnout for Obama. Plus, I think the Dems were asleep at the switch when Coakley ran.

I don't know whether the current polls are assuming an urban turnout similar to the Brown/Coakley election. In any event, Brown I think will have a tougher time against either Lynch or Markey. Although Markey has to be classified a favorite in the primary, I think Lynch would be a tougher opponent for Brown. Brown won't be able to paint Lynch as an elitist. For example, Lynch would actually enjoy shaking hands outside Fenway Park!

[Thomas Collins]

Thanks, cc. Sorry I missed your prior post on Cordray.

[Ignatz Ratzkywatzky]

Would smokers have some legal recourse if they are compelled to pay a higher premium but the obese and alcoholics and drug addicts and speeders and the promiscuous and child bearing age women, the aged, etc are not?

Would those who do not engage in any of those activities or fit any of those categories have legal recourse to lower their premiums if they are artificially inflated due to the government's failure to compel premium adjustments for every risky behavior or characteristic?

I say it's 50/50, maybe more, that Barrycare, initially upheld, eventually collapses under its own weight ala McCain-Feingold.

[Captain Hate]

Thanks, TC; Lynch might be the pick of the litter.

[Thomas Collins]

I think ObamaCare will eventually collapse, Ignatz (hopefully before it collapses the US, although it may be close). I don't think smokers would prevail on an equal protection claim. Smokers are not a suspect class for judicial review purposes, so ObamaCare's disparate treatment of smokers wouldn't be subject to a strict scrutiny type of review.

[Rick Ballard]

TC,

I wouldn't put a nickel on Scottie Halfavote with him having lost the support of Rocco and Jane. Chambliss appears to have had the auguries read correctly and Scotty should look into borrowing his haruspex.

[Danube of Thought]

I doubt they will hear it en banc. The ruling does not seem at all controversial to me. The power to say when the Senate is in recess rests exclusively with the Senate.

[NK]

Ig-- I'll make this bold Macro prediction about BarryCare. When the OPM runs out, and BarryCare kicks in-- there will be a debate about how to spend what's left of the drying up pool of OPM. Spend on retired workers' MediCare?, or spend on unemployed. illegal immigrant children MediCaid. The seniors, and soon to be seniors, will be shocked by what Barrycare does to Medicare in order to pay for greatly expanded MediCaid/Welfare. Blue v.Blue fight.

[Jane on Ipad]

If you have to go democrat, Lynch is more preferable than Markey by a ton. Markey is a moonbat thru and thru. Lynch is a pro-life, pro-union l democrat. As conservative as a democrat gets in MA. He was originally elected on 9-11 in the special election we had that day.

[NK]

DoT-- En banc. I haven't had a case in the DC Circuit for a while-- so I don't know the current make-up of the Court, and how many Barry appointees there are. Clarice may have a good inside baseball knowledge of this.

[Dave (in MA)]

As an example of how dimwitted Lynch is, a few years after he was elected, he filed a bill that would have banned Oxycontin nationwide.

[Dave (in MA)]

Why can Scottie Centerfold only poll well in special elections and then lose regular ones badly to an obvious grifter?

The machine gets the straight ticket Dims out there for the regulars, but doesn't do as good a job for special elections. With the lower-profile special elections and especially the Prop. 2 1/2 overrides, it seems to be the other way around.

[Danube of Thought]

There can be no more convincing demonstration of an absolute lack of class than this bit of insolence discloses:

President Barack Obama fired General James Mattis, the head of Central Command, without even calling the general to let him know he was being replaced.

"I am told that General Mattis was travelling and in a meeting when an aide passed him a note telling him that the Pentagon had announced his replacement as head of Central Command. It was news to him -- he hadn't received a phone call or a heads-up from anyone at the Pentagon or the White House," Thomas E. Ricks reports.

[Clarice]

I fully expected the DC Ct's order. People have to realize that Obama's been getting away with this stuff for a while because it takes time to litigate these matters. I understand 200 cases will now have to be overturned because there was no legal quorom when they were entered.

I believe Cordray's initial appointment was made the same way as were some others..From a confused president we now have chaos.

And what does this say about his legal advisers?

[fdcol63]

I hope we can count on many retired and former military officers when the 2nd American Revolution starts.

[Clarice]

NK, the DC Circuit is second in prestige only to the SCOTUS and that is because it handles the most important federal cases. I do not see an en banc hearing in this case. The law was pretty clear cut..it just took time to work thru the courts.

This is the first of what I predict will be a litigation and legislative claw back of Obama's overreaching.

[centralcal]

Reince Priebus has been re-elected chairman of the RNC - only 2 no votes.

[Captain Hate]

And what does this say about his legal advisers?

What does it say about *any* of his advisers that once he gets an urge to do something inside his empty head, nobody seems to try to dissuade him?

[NK]

Clarice-- thanks. What is the En Banc make up of the DC Circuit at this point-- how many Obama appointees?

[Clarice]

I don't know but I bet the Ct website or Wiki will tell you. I don't off hand recall any Obama appointees on this Ct.

Frankly I'm not sure it would make a difference, as I say it's clear cut law.

[centralcal]

Miguel Estrada argued the NLRB case - hooray for him!

[Clarice]

Prof Volokh thinks there are two oher issues the Ct resolved which are new and went beyond the briefings. and that the govt might find the case so significant that it will not seek en banc review but will go right to the SCOTUS:http://www.volokh.com/2013/01/25/dc-circuit-strikes-down-president-obamas-recess-appointments/

In the news acounts I read these other points were not mentioned.

[Captain Hate]

Clarice, DoT, NK and other attorneys:

Somebody @ AoS makes the following argument "But the problem is that this creates chaos by retroactively invalidating pretty much every damn recess appointment made for more than half a century, and potentially calling the validity of the decisions made by those invalid appointees into question."

Is there anything to this or is he wrong?

[bgates]

This NLRB appointment was thrown out by a court at the same level as the one that declared Obamacare unconstitutional, right? And as TK pointed out they stayed their own order, which would minimize the disruption assuming it gets overturned on appeal.

Maybe the SC can compromise, remove the appointee but keep all the decisions. Roberts can ask, "Was this appointment an unconstitutional power grab, or was it a pragmatic decision in line with a long history of executive behavior? How much difference, at this point, does it make?"

[NK]

Separation of Powers cases-- are constitution and therefore political. So the make up of each DC Circuit panels hearing and the en banc court will be of great significance IMO.

[Clarice]

I don't see that bgates. Under the constitution no ruling by an administrative body, no Ct ruling and no legislative action can be valid in the absence of a lawfully appointed quorum.

Here's volokh's discussion:

"The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments, so this is an important ruling as a practical matter.

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate. The text of the Clause provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess. And there it has remained ever since. The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score."

In other words, he suggests the Ct went further than it needed to or ought to have gone.

[Ignatz Ratzkywatzky]

--But the problem is that this creates chaos by retroactively invalidating pretty much every damn recess appointment made for more than half a century...--

Isn't that factually incorrect?
I thought this was the first case of a bum like Barry saying a pro forma session was in fact a recess.
It was my understanding previous presidents have honored a pro forma session as in fact not a recess.

[centralcal]

Just a minor clarification to Clarice's citation and link to Volokh - the piece she is referencing was written by John Elwood, a contributor - not by Prof. Volokh.

[Threadkiller]

--"How much difference, at this point, does it make?"

Posted by: bgates | January 25, 2013 at 01:29 PM

Bingo

[NK]

CaptH-- I can only say this-- Federal Courts only hear cases in controversey. So even in this NLRB case, the agrieved parties have to ask the NLRB to recall its decisions/rules because of lack of quorum, invalid votes etc, and if NLRB refuses to do so, sue in Fed Dist Ct to invalidate the NLRB action. That is a timely case in controversey-- prior recess appointments? you'd have to have standing to challenge them the appointees actions, PLUS they'd have to be timely challenges under the applicable statutes of limitations. Seems farfetched to think any such cases exist. That's all I can say.

[Danube of Thought iPad]

There are no Obama appointmees on the D.C. Circuit.

I think that guy is wrong, CH. I'm not aware of any prior recess appointments made under these circumstances.

[Sandy Daze]

DoT -

Part and parcel and not inconsistent with this Administration's action for years.

e.g. Four Star Navy SEAL Eric Olson learned that he would soon be retiring when in front of a Senate Committee (SASC?) in Spring 2011 and began receiving the congratulations and thanks from the Senators for his years of service.

The VERY first inkling he had heard.

[Captain Hate]

Thanks for the responses; let me just say that the guy is far from one of my favorite posters so having his ruminations be probably wrong is an added bonus to what is already the best day of the new year.

[Danube of Thought iPad]

Well, CH, I should have said I wasn't aware. Now I am, thanks to Clarice and Volokh.

With the split in the circuits, the SCt is clertain to hear this. But it's going to take time, and I guess those NLRB rulings will stand in the meantime.

What a mess our "professor of constitutional law" has made.

[jimmyk]

Would smokers have some legal recourse if they are compelled to pay a higher premium but the obese and alcoholics and drug addicts and speeders and the promiscuous and child bearing age women, the aged, etc are not?

Ig, you obviously have not been reeducated properly. Let's go through the list.

Obesity-disease, preexisting condition
Alcoholism-ditto
Promiscuity-a woman's right
Unprotected anal sex-genetic condition
Speeders-everyone does it, but some get caught, disproportionately people of color, therefore you are a racist.

Got it?

[Sandy Daze]

All class, these clowns...

But, on second thought, what difference does it make? What difference, at this point, does it make?