SCOTUS Crushes Another Obama-Era Health Reg, Openly Hits Obama Admin's Lawlessness


Barack Obama’s pen and phone have been retired — and many of the regulations they ushered in have either been swept away or are being undone by the courts.

In a 7-1 ruling on Monday, the Supreme Court struck down an Obama Medicare reimbursement regulation because, according to The Hill, officials did not follow the proper notice and comment regulations in implementing the formula.

Stephen Breyer was the only dissenting vote; Brett Kavanaugh had originally heard the case when he was on the D.C. Circuit and wasn’t part of the proceedings.

The policy, which was implemented in 2014, had reduced payments to hospitals for treating low-income patients.

“In 2014, the government revealed a new policy on its website that dramatically — and retroactively — reduced payments to hospitals serving low-income patients,” Justice Neil Gorsuch wrote in his decision.

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“Because affected members of the public received no advance warning and no chance to comment first, and because the government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligations, we agree with the court of appeals that the new policy cannot stand.”

According to The Epoch Times, Allina Health Services — a Midwestern-based operator of non-profit hospitals — brought the suit.

“The company claimed it had been shortchanged by as much as $4 billion as a result of the improperly executed policy change,” The Times reported.

“Allina had asked the Provider Reimbursement Review Board for relief, but the entity said it lacked jurisdiction to hear the case. Allina took the matter to a U.S. district court, eventually losing at the appellate level.”

Do you think this regulation should have been struck down?

Given that Medicare is the second-biggest federal program right after Social Security, Gorsuch wrote in his decision, it “touches the lives of nearly all Americans.”

Thus, if the government wants “to establish or change a ‘substantive legal standard’ affecting Medicare benefits, it must first afford the public notice and a chance to comment.”

The policy was defended by the Trump administration, which argued, according to The Epoch Times, “that the formal rulemaking process wasn’t required by the statute.”

According to Courthouse News Service, “substantive rules require notice and comment, while interpretive rules do not.” The Department of Health and Human Services seemed to argue that it was in the latter category.

Only Breyer seemed to agree with HHS.

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While the Trump administration may have been for it, the court ruled correctly: The new calculation of reimbursement metrics was a substantive rules change that should have been open to comment. Instead, the Obama administration — that paragon of openness and transparency — decided to treat it as interpretive.

Furthermore, what would have happened to these hospitals had the rule remained in place?

Some would likely close. Others would pass on the money to other patients. Either way, it would have put an onus on Americans.

As Justice Gorsuch pointed out in his decision, “as the government knows well, courts aren’t free to rewrite clear statutes under the banner of our own policy concerns.

“If the government doesn’t like Congress’ notice-and-comment policy choices, it must take its complaints there.”

Is this the most egregious example of what we’ve seen from Obama and his administration? No. But it was indicative of a mindset — a mindset which is now being undone, whether by the courts or by the Trump administration.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture