- The Washington Times - Sunday, July 3, 2016

A federal appeals court seemed sympathetic to West Virginia’s complaints about Obamacare but tossed out the state’s challenge in a ruling Friday that leaves President Obama with a free hand to alter enforcement of the law.

The judges said West Virginia didn’t prove it was injured by Mr. Obama’s about-face, so it didn’t have standing to sue. The court never reached the key legal questions of presidential authority.

“Although Appellant dresses up its argument as a breach of State sovereignty in violation of the Tenth Amendment, its injury is nothing more than the political discomfort in having the responsibility to determine whether to enforce or not — and thereby annoying some West Virginia citizens whatever way it decides,” Judge Laurence Silberman wrote for the unanimous three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia.

The case stemmed from Mr. Obama’s now-infamous vow that those who liked their insurance plans before Obamacare would be able to keep them after the Affordable Care Act went into effect.

Despite his promise, millions of plans were quickly deemed inadequate under the law’s strictures, cancellation notices went out and “all hell broke loose,” Judge Silberman wrote.

Mr. Obama’s administration, scrambling to save his law, issued waivers saying states could ignore the requirements and allow customers to keep the deficient plans to alleviate the suffering. But the states also could enforce the new rules.

“That left states holding the bag,” Judge Silberman wrote.

West Virginia first said it would enforce the rules, then decided against it. It then sued, saying the federal government was foisting off its own duties on the states, which West Virginia argued was unconstitutional.

The appeals court said states usually sue when the government does enforce a law, but in this case were suing because the government wasn’t enforcing the law as written. But the judges said West Virginia couldn’t show any actual harm, so it didn’t have standing to sue.

Obamacare opponents did, however, win another case Friday before a different panel of the D.C. appeals court.

That second panel ruled that the administration broke the law when it tried to eliminate “fixed indemnity” plans altogether. Such plans give customers a fixed payout for a health service, regardless of what the doctor or hospital charges.

Although not Obamacare-compliant, the plans were popular with customers — despite having to pay the Obamacare penalty — insurers told the courts. But the Obama administration wrote rules in 2014 designed to eliminate the plans altogether.

The appeals court said the Health and Human Services Department went too far, writing rules that contradicted the plain language of the law, so the rules had to go.

“Disagreeing with Congress’s expressly codified policy choices isn’t a luxury administrative agencies enjoy,” Judge Janice Rogers Brown wrote in a unanimous opinion for the three-judge panel.

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