“Congress is Supreme in Matters of Policy”: D.C. Circuit Rules Against Obama Administration In Halbig

US-CourtOfAppeals-DCCircuit-SealPresident_Barack_ObamaAs I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo just hit. The D.C. Circuit has found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. It is another major blow against the Administration and more importantly another judicial finding that President Obama exceeded his authority in his effort to “go it alone” in ordering such changes to federal laws.

As I suggested in the last blog, the decision was 2-1 with Judge Harry T. Edwards (a Carter appointee) in the dissent and Judges Thomas B. Griffith (a George W. Bush appointee) and A. Raymond Randolph (a George H.W. Bush appointee) in the majority. Randolph wrote a concurring opinion. I obviously agree with the result. I have testified that I believe that the text is clear in the Act and that the Obama Administration effectively altered the language when 34 states decided to defy the government and refuse to create state exchanges. The implications for the viability of the ACA, at least as originally designed, are huge.

When the Administration’s witnesses raised the lower court win in Halbig during the last hearing, I cautioned the Committee to wait to see what was coming because I doubted that the D.C. Circuit would agree with the trial court on its statutory interpretation. As discussed earlier, Halbig challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.”

But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.

Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn’t establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.

The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute’s language does limit subsidies to residents of places with exchanges “established by the state,” that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.

The D.C. Circuit rejected the statutory interpretation of the Administration as well as its argument that the actual language of the law would lead to absurd results:

The fact is that the legislative record provides little indication one way or the other of congressional intent, but the statutory text does. Section 36B plainly makes subsidies available only on Exchanges established by states. And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. Cf. Ethyl Corp. v. EPA, 51 F.3d 1053, 1063 (D.C. Cir. 1995) (“At best, the legislative history is cryptic, and this surely is not enough to overcome the plain meaning of the statute.”). To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition.

The court acknowledges that this decision will rock the ACA at its foundations but says that it must protect congressional authority against executive over-reach:

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.

The dissent by Randolph is quite short and is intended to amplify his view that a “Supreme
Court tax decision, and a tax decision of this court, flatly reject the position the government takes in this case. . . Justice Brandeis’ opinion for the Supreme Court in Iselin v. United States is controlling: ‘What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.'”

In his dissent, Judge Edwards relies on Chevron to simply give deference to the agency in the interpretation of the law:

Because IRS and HHS have been delegated authority to jointly administer the ACA, this case is governed by the familiar framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron, if “the statute is silent or ambiguous with respect to the specific issue,” we defer to the agency’s construction of the statute, so long as it is “permissible.” Id. at 843. The Government’s permissible interpretation of the statute easily survives review under Chevron. The Act contemplates that an Exchange created by the federal government on a State’s behalf will have equivalent legal standing with State-created Exchanges. 42 U.S.C. § 18041. And the ACA would be self-defeating if taxpayers who purchase insurance from an HHS created Exchange are deemed ineligible to receive subsidies.

Appellants’ argument cannot be squared with the clear legislative scheme established by the statute as a whole.

The Administration would be moronic not to opt for an appeal en banc to the full D.C. Circuit given its make up. However, as I discussed earlier, even those more liberal judges will have to deal with two recent decisions that seem to reject the holistic interpretive approach of the Administration. See the testimony linked here. The political fallout will also be interesting. Some states might consider creating state exchanges to guarantee tax credits for their citizens. However, citizens in the other states may want the effective option to exempt themselves from the individual mandate that constructively exists in the 24 states. In any case, there is not expected to be any significant changes pending appeal. However, if it stands, it could allow for an exodus from the Act.

While many will simply dismiss this as a predictable move by Republican appointees, I believe that that claim unfair to these judges, unsupported by the decision, and a continuation of our rather poisonous political debate where every opposing voice is denounced as without honor or good faith. The same objection could be made to the Democratically appointed judge in dissent. In reality, all three remained faithful to their views of statutory interpretation, or legisprudence. It is true that the D.C. Circuit has a better array of judges for the Administration but not because of who appointed them. The judges include a number who agree with the broad deference given to agencies, as does Edwards. However, even those judges will have to reconcile recent decisions by the Supreme Court that rejected the same type of “holistic” interpretations. On Michigan v. Bay Mills Indian Community, for example, Justice Elena Kagan held:

But this Court does not revise legislation, as Michigan proposes, just because the text as written creates an ap¬parent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts — addressing one thing without examining all others that might merit comparable treatment . . . This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in Michigan’s words) Congress ‘must have intended’ something broader.”

Justice Kagan concluded by declaring that “We will not rewrite Congress’s handiwork.” Likewise, the Court rejected an agency interpretation in Utility Air Regulatory Group v. EPA where the federal agency called for the same deference on an interpretation of the Clean Air Act. However, Justice Scalia wrote for the Court that such interpretations constitute the unconstitutional rewriting of federal law:

We conclude that EPA’s rewriting of the statutory thresholds was impermissible and therefore could not validate the Agency’s interpretation of the triggering provisions. An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.’” National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665, 127 S. Ct. 2518, 168 L. Ed. 2d 467 (2007) (quoting Chevron, 467 U.S., at 843, 104 S.Ct. 2778, 81 L. Ed. 2d 694). It is hard to imagine a statutory term less ambiguous than the precise numerical thresholds at which the Act requires PSD and Title V permitting. When EPA replaced those numbers with others of its own choosing, it went well beyond the “bounds of its statutory authority.” Arlington, 569 U.S., at ___, 133 S. Ct. 1863, 185 L. Ed. 2d 941, 951 (emphasis deleted).
The Solicitor General does not, and cannot, defend the Tailoring Rule as an exercise of EPA’s enforcement discretion.

These two successive losses for the Administration were, of course, followed by the major loss in Hobby Lobby, where the Court rejected the exemption system devised by the Department of Health and Human Services (HHS) for corporations with religious objections to the contraception provisions of the ACA.

These decisions present additional support for the challengers on how courts are to approach statutory text. While critics insist that the language in the law is a “typo,” that is the type of spin that courts are not supposed to engage in. Any language could be dismissed as mistaken or irrelevant under such approaches. Moreover, the level of deference given to agency by Edwards is disturbing to us who are concerned with the rise of the “Fourth Branch” represented by federal agencies.

In any case, this will be fascinating to watch both legal and politically as the impact of this ruling takes hold.

Here is the decision: Halbig opinion

162 thoughts on ““Congress is Supreme in Matters of Policy”: D.C. Circuit Rules Against Obama Administration In Halbig

  1. The vote was 2- 1. Two republicans… not too difficult to predict in this age of extreme partisanship. Congress could pass a quick fix but doubt it will.

  2. http://www.huffingtonpost.com/2014/07/22/federal-appeals-court-del_n_5609440.html “WASHINGTON (AP) — A federal appeals court has delivered a serious setback to President Barack Obama’s health care law, potentially derailing subsidies for many low- and middle-income people who have bought policies.

    If upheld, the decision could mean premium increases for more than half of the 8 million Americans who purchased taxpayer-subsidized insurance under the law.

    It affects consumers who purchased their coverage through the federal insurance marketplace — or exchange— that serves 36 states.

    A three-judge panel in Washington ruled 2-1 that the law, as written, only allows insurance subsidies in states that have set up their own exchanges. That invalidated an Internal Revenue Service regulation that allowed subsidies in all 50 states.

    “We reach this conclusion, frankly, with reluctance,” Judge Thomas Griffith said Tuesday. “At least until states that wish to can set up exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health insurance markets more broadly.”

    In his dissent, Judge Harry Edwards called the ruling “a not-so-veiled attempt to gut the Patient Protection and Affordable Care Act” and warned that the panel’s ruling “portends disastrous consequences.”

  3. It is sad that people still want to prevent millions from getting affordable health care. It is sad that many states have played politics in order to stop the ACA and by doing so, they have endangered the lives of their own citizens.

  4. http://www.msnbc.com/msnbc/dc-circuit-obamacare-subsidies “Although the decision is a serious setback for the Affordable Care Act, the government could appeal to the full D.C. Circuit panel, which now boasts a majority of judges appointed by Democratic presidents. Last year, Senate Republicans filibustered every Obama nominee to the D.C. Circuit seeking to preserve its conservative tilt. If the Democrats had not abolished the filibuster for judicial nominations in response, Republicans would have been successful in doing so. “

  5. This is obviously a partisan ruling. The law states that the STATE, ie the Federal government as well as individual states are the ones who can establish a program to enable those in places like Texas to get help with payments. I for one am very glad the state of Texas has not established an exchange because most of the subsidies would go to the cronies of Guv. Perry. It also puts Texas in a bind since the High Risk Insurance program Texas had is now defunct and out of business. They could easily have transferred that into the state exchange to comply with the ACA. That pool had premiums that were outrageously high so that in my area, coverage for only my wife would have been $1500/mo.

    I wonder about the standing issue as well. The Obama ruling was designed to alleviate some financial problems for those who lived in states like Texas. So I fail to see how the ACA caused a problem for the plaintiffs since by providing health care, it relieved them of a burden that they would have incurred in any case. So from what I understand, they complain that by allowing such participation, they lose the opportunity to deny themselves and the small employers the ability to deny the ability to opt out of the law. The penalty for not complying is miniscule compared to the problems of health care insurance. I guess that we will next have a ruling that drivers can opt out of car insurance too or that the DoT requirements for truckers for insurance are void since they are not enshrined in law, but in regulations by the faceless bureaucracy, the dread fourth arm of dictatorial government.

  6. “Sen. Ted Cruz (R-TX), a fierce opponent of the Affordable Care Act, on Tuesday praised the federal appeals court decision that bans the federal government from providing subsidies to the 36 states that use the federal health care exchange.

    “The D.C. Circuit’s decision today in Halbig v. Burwell is a repudiation of Obamacare and all the lawlessness that has come with it,” Cruz said in a statement.

    “This decision restores power to Congress and to the people and if properly enforced, should shield citizens from Obamacare’s insidious penalties, mandates, and subsidies. This is a significant victory for the American people and the rule of law, but we must not rest,” he continued. “Every last word of Obamacare must be repealed to restore jobs, growth, and opportunity in our country.” ” TPM

  7. The Dem party hacks need to embrace the idea that words have a meaning, which are not based on the whims of Pelosi or the One. Hmmm, maybe this needs an Irish Poem!!!

    The Plain in ‘Splain???
    an Irish Poem by Squeeky Fromm

    In re: Statutory Construction
    One’s party should prove no obstruction!
    ‘Cause words have plain meanings,
    And partisan leanings
    Will lead to judicial destruction!

    Squeeky Fromm
    Girl Reporter

  8. Yes Ted, the opportunity to die in the gutter, to be unable to obtain health insurance, to be condemned to squalor and misery.

  9. I love how when people disagree with judicial decisions (both parties are guilty of this) it’s partisanship, but when they agree with it, not a peep. I’m guessing that the majority of the people claiming this decision and the 2-1 margin is “PARTISAN” have not even read the decision. How sad.

  10. This is a good decision for two reasons:

    1. it affirms separation of powers and curtails executive overreach. Executive lawlessness is not a partisan issue. It is a problem under any president, of any party. This ruling is an important reaffirmation of a govt. by law, not men. This type of govt. is not flawless but it offers the best protection of the people.

    2. this offers the US a real chance to provide universal, single payer health care, something which Obama took off the table when Congress was implementing health insurance company plans.

    We deserve and need single payer, universal health coverage. We deserve and need a govt. of laws, not men. Let’s take every chance we get to implement both!

  11. Jill, ” 2. this offers the US a real chance to provide universal, single payer health care, something which Obama took off the table when Congress was implementing health insurance company plans.” Really, What is the vote count on that? I have not heard of a single republican that is for it. They will control the house for the next few years and possibly the senate.

  12. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 9th Amendment

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 10th Amendment

    It’s nice to see we still have federal judges that respect and honor the constitution. Both sides of the political aisle need to realize unalienable rights are the oxygen to an electorate’s apnea. This ruling is another gulp of air.

  13. Jill – no one deserves single payer. That is a disaster. Just ask the UK and Canada. Obama is the nation’s most prominent lawbreaker.

  14. Universal, single payer health care is happening whether or not anyone is admitting it. It is old people and poor people who need health care and they have had Medicare and Medicaid for a long time. Others just show up in the ER and receive care. Those who can afford high insurance rates/higher tax rates pay for health care for everyone else. Whether it is called an insurance premium or a tax is the only remaining issue.

  15. John, Then I guess that the state of Connecticut can go back to its law mandating that CT pilots MUST have a pilots license from the State of CT. There is nothing in Federal law that denies the state the right to do that. I used to have a CT pilots license by the way.

  16. Squeeky is legally and poetically correct on this issue. We determine the meaning of a statute by the words that are used, and the statute in this instance seems pretty clear to me. I believe that the decision is the correct one.

    The long-term political consequences, however, are unpredictable. Many people will be angry with the Obama Administration for losing subsidies they relied upon in good faith. Many people will also be angry with the political leadership in those states that refused to establish health exchanges in defiance of the Administration.

    I also agree with Jill that this could renew pressure to adopt a single payer system, but I do not believe that there is a “real chance” of that happening for the reasons swarthmoremom mentions.

    The only certain short-term prediction is chaos.

  17. Doglover, I guess you have never been to an ER and not had insurance. They do NOT treat you if you have no insurance. It is only when there is a life threatening condition that they are mandated to treat you. In Texas in Amarillo a Mexican American child was taken to the ER and was refused treatment because of no ability to pay. The child went home and died. The ACLU sued the hospital, but was only able to do so since the hospital had taken Federal money with the requirement to provide indigent health care. Any hospital which had not taken Federal dollars, in aid, NOT Medicare or Medicaid, had to provide that kind of service.

    I can address the fact that in my part of Texas, when my wife had no health insurance, we had to demonstrate an ability to pay before she would be seen at the ER. The county only provides a max of $30,000 per person lifetime care for indigent patients in the hospitals in our county.

  18. http://thinkprogress.org/justice/2014/07/22/3459165/halbig/ “The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.”

  19. I fly into Canada on a regular basis and I asked ordinary Canadians about how they like their health care system. Without exception, ALL responses were positive. Even Sarah Palin admitted SHE loved it even though she was illegally freeloading off of it when she lived in southern Alaska.

  20. Squeeky Fromm,
    “And partisan leanings
    Will lead to judicial destruction!”

    How do you not see the irony in that post?

    rafflaw was right, it is sad.

  21. Randyjet, I have MANY relatives in Canada. They’ve told me numerous times they would never trade their system for ours.

  22. http://www.politico.com/story/2014/07/halbig-obamacare-ruling-justice-department-appeal-109228.html?hp=l3

    The Department of Justice said Tuesday that it will challenge an appeals court ruling that strikes Obamacare subsidies for millions of Americans using HealthCare.gov, the federal exchange.

    “We believe that this decision is incorrect, inconsistent with congressional intent, different from previous rulings, and at odds with the goal of the law: to make health care affordable no matter where people live,” a DoJ spokeswoman aid.

    “The government will therefore immediately seek further review of the court’s decision.” The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the health insurance subsidies, also known as premium tax credits, could only flow through state exchanges.

    The government will seek an en banc review from the full D.C. court of appeals, a Justice official said. The case could eventually land in the Supreme Court, which in 2012 upheld Obamacare’s constitutionality in a suit that addressed a different set of legal issues.”

  23. I just finished reading the majority (2) opinion and the dissenting (1) opinion.

    The majority opinion is well written and reasoned except that it is too anal in my opinion.

    The dissent has the better view of “ambiguity” and “absurd result” in my estimation:

    Appellants rely on a specious argument that there is no “Exchange established by the State” in States with HHS-created Exchanges and, therefore, that taxpayers who purchase insurance in these States cannot receive subsidies.

    As explained below, there are three critical components to the ACA: nondiscrimination requirements applying to insurers; the “individual mandate” requiring individuals who are not covered by an employer to purchase minimum insurance coverage or to pay a tax penalty; and premium subsidies which ensure that the individual mandate will have a broad enough sweep to attract enough healthy individuals into the individual insurance markets to create stability. These components work in tandem. At the time of the ACA’s enactment, it was well understood that without the subsidies, the individual mandate was not viable as a mechanism for creating a stable insurance market.

    Appellants’ proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants’ amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, “the structure of the ACA will crumble.” Scott Pruitt, ObamaCare’s Next Legal Challenge, WALL ST. J., Dec. 1, 2013. It is inconceivable that Congress intended to give States the power to cause the ACA to “crumble.”

    (dissent of Edwards, J.). It is likely that an en banc hearing will be granted, and a different result derived that the two judges in the majority on the panel.

    What the Supreme 5 will do is not yet clear to me so I will reserve hazarding a guess on that one for now.

  24. Annie, More correctly you need to say that single payer will be difficult because of Congress and this president. You must not forget that it was none other than Obama who took single payer off the table and had advocates for single payer arrested for trying to deliver their proposal at the White House gate. There was actually some members of Congress ready to do a single payer bill until Obama told them they could not do so.

    My other point is that the rule of law is the best protection any citizen has against a lawless and arbitrary govt. Most partisan people are willing to jettison the rule of law on behalf of “their” president. This is a fools bargain.

    There was already chaos in the health insurance scam we know as Obamacare. There is extensive documentation of people being unable to afford care, even in states w/subsidies. There is documentation of increased denial of benefits. There is documentation of restriction of providers. This was never intended as a health CARE bill. It was intended to be, and turned out exactly as planned, to be a gift to the health insurance companies.

    So get moving on pushing for single payer health care. If you have already decided it cannot be done, that will be a self-fulfilling prophecy. We need the rule of law and we need single payer, universal coverage. If we won’t demand it now, when are we going to demand and push for it?

  25. Secretary of State Kerry does not mean that Kerry is a state official.

    state: a nation or territory considered as an organized political community under one government; of, provided by, or concerned with the civil government of a country; e.g. head of state, secretary of state; the state of Alabama.

  26. Jill,
    The single payer concept is one that many of us would prefer. Do you honestly think this Congress would pass anything this administration requests? If they think a health care program that goes through private insurers is “socialism” what do you think their response will be. The only chance, in my opinion, of single payer being established here is after a number of years under the ACA and a Congress that will actually consider what’s best for the country and not its own party.

  27. I actually went on line for a co worker and found what he would have to pay here in Texas for his wifes coverage. It came to $230/mo for a gold plan with pretty good coverage with low deductibles. That is not going to break him or any person unless they are on minimum wages. The penalty for not enrolling was $95/yr on his income tax return. So relative to standing, I fail to see how they got past that hurdle. Ninety five dollars is not enough to get into anything but small claims court and even then would barely more than the filing fees

  28. It may well be that Congress did not “intend” to permit the states to destroy the law by refusing to create exchanges. The problem is that, in the absence of ambiguity, we determine what Congress intended by reference to what Congress said. If the language chosen by Congress does not reflect what was really intended, the solution is for Congress to adopt an amendment containing language which correctly reflects its intent. That is neither the function nor prerogative of the courts, at least if the notion of separation of powers is to mean anything.

  29. Mike, Yep. I wonder if Boehner would let them have a vote on an amendment.I think the answer is no.

  30. And the implosion begins.

    From how I read it, this will put an administrative and funding hole right into the middle of the ACA.

    Unless this gets reversed, I believe it is the ACA’s inevitable demise.

  31. Professor Turley, do you or any other serious legal scholar think for a moment that this SCOTUS will care a wit about congressional intent in this matter? Given what they did when they eviscerated the Voting Rights Act in the face of a clear congressional record, they’ll simply choose to look at the language and kill the federally-run exchange subsidies when this case gets to them.

    It will be interesting to see what the insurance industry does with their GOP financial support when the House and Senate GOP refuse to do anything on this until the 2016 election.

  32. MA,

    Hear, hear! I second that!

    Thank you for that episode of lucidity and objectivity.

    The Founders would be proud.

  33. Basically Courts have been telling Obama he can’t govern The Chicago Way. A few Illinois governors ended up in Federal Prison governing the Chicago Way. This President is simply going down in the books as the most lawless yet.

  34. Annie, Obama didn’t just “not push” for single payer, he told congress to take it off the table from consideration. He had single payer advocates arrested at the WH for trying to submit their proposal. He refused them entrance to any discussions when the bill was being written. In other words, he is actively against universal, single payer health care.

    Nevertheless, and despite the other ruling, we need to push this congress and this president for universal, single payer health CARE. If not now, when?

  35. Rafflaw, You are also forgetting that Obama actively opposes single payer, universal health care, as I explained above to Annie. So you have to push the Congress and the president.

    If you won’t try, the answer is clear-NO! However, many people are profoundly sick of both this Congress and president and their betrayal of the people on multiple issues, one of which is their abject failure to provide health care. Coalitions are building in favor of single payer, even among some Conservatives in the Democratic and Republican party. So don’t give up now. This is an opportunity to go for what we really need and deserve in our nation–both the rule of law and universal, single payer health care. The law and health care fairy isn’t coming. It’s up to us.

  36. If the goal is to insure all Americans, then the ACA is going in the opposite direction. After all, any tin pot banana republic can give “health care for all.” The key is for everyone to have access to quality health care. It’s like there is this gigantic acquarium, and we the people are these tiny goldfish swimming around while Obama Pelosi Reid et al occasionally dust some food in the tank. I want the same access to QUALITY healthcare as Congress and Obama have. Give me what THEY have.

  37. The house will stay republican until after the districts are re-drawn after the next census. Would not expect a serious push for single payer until then and that depends on what happens in the 2022 elections.

  38. Ra flaw,

    Under the clear language of the Preamble, Constitution and Bill of Rights, you are free to operate a business in the charity industry in the free markets of the private sector.

    Under the same language, redistribution of wealth is not the burden of the taxpayer. As the government has the power to tax to fund governmental operations, which are limited to security and infrastructure, there is no constitutional mandate or authority to take property from one man to give it to another. General welfare (i.e. infrastructure) is deliberately included as individual welfare is excluded.

    Rather than absconding with other people’s money through confiscatory and punitive taxation for the benefit of people who refuse self-reliance, you should start a charity. You most certainly would be very successful.

    The Founders thought you understood the freedom of all industries, including those of education, charity and healthcare. Try this exercise: substitute the word business for religion in the text below as you will then possess the same intent, expectation and understanding of the Founders. It never occurred to them that people would think business was not as free as religion.

    They thought you knew.

    First Amendment:

    Congress shall make no law respecting an establishment of BUSINESS, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  39. I caucused universal healthcare single payer at my local democratic convention rather that caucusing for a candidate this year. That is just one of the joys of not living in a tea party dominated red state. I had a sign like that at a local health care meeting in Texas, and when i went to the restroom, a tea party guy took my seat and tore up my sign.

  40. swarthmoremom quoted Ted Cruz “Every last word of Obamacare must be repealed to restore jobs, growth, and opportunity in our country”

    Returning to the days when insurance companies could deny coverage on a whim would create opportunities for pharmacies to charge ten times as much for people without insurance. And the opportunities for people without insurance would become negative by an order of magnitude.

    Anon wrote “when people disagree with judicial decisions (both parties are guilty of this) it’s partisanship, but when they agree with it, not a peep”

    John Roberts made a lot of noise on the subject of how he would respect stare decisis, but somehow as soon as he became chief justice, he forgot all about that.

    Definition of judicial activism: when the other side changes something.

  41. SMM,

    For you, this is partisan problem when reality says otherwise. Obama is a Democrat and he did everything to stop single payer, universal health care. That is a documented truth.

    I truly wish you partisans would quit worrying about the “other” party and concentrate on moving your own party to the positions you want them to take. In addition, why not generally push for what we all deserve? What do you have to lose by trying?

  42. randyjet – I live in Arizona where Canadian snowbirds come for the winter to take advantage of OUR health care. If theirs is so good, why are Canadians tying up Arizona doctors all winter?

  43. Jill, you’re being very unrealistic. There will be NO chance of getting Single Payer through a majority Republican House. NONE.

  44. I truly wish you partisans would quit worrying about the “other” party and concentrate on moving your own party to the positions you want them to take. In addition, why not generally push for what we all deserve? What do you have to lose by trying?” Jill I just told you I caucused single payer universal healthcare at my local convention.

  45. Spinelli,

    An excellent observation.

    “Basically Courts have been telling Obama he can’t govern The Chicago Way. A few Illinois governors ended up in Federal Prison governing the Chicago Way. This President is simply going down in the books as the most lawless yet.”

    Concerning the judicial and executive branches, there must be severe penalties for blatant political bias, dereliction, negligence, malfeasance, usurpation and corruption.

    Judges stray from legality and acceptable behavior when they “legislate from the bench” and transform their actions into a political vote rather than formal, deliberate and objective adjudication.

    A “tipping point” in deed!

  46. John,
    don’t forget that at least one of the governors that ended up in Jail in Illinois was a Republican governor. So was he governing under the so-called Chicago Way?

  47. ” no one deserves single payer. That is a disaster. Just ask the UK and Canada. Obama is the nation’s most prominent lawbreaker.”

    I can understand wanting to improve health care in the UK and Canada.

    But to act like we have anything to teach them is laughable.

    Suppose I told you I had a brand new auto to sell you. Roughly a third of the time it won’t work. When it does work it will not work as well as other easily available models. And it will cost twice as much as any other car on the road.

    Would you say fine I want that one or would you say ‘wait a minute’?

    Our health care system without ACA is simply unavailable to 10s of millions of adults. For those who can afford health care, many measures of effective treatment simply do not measure up to what is produced in other industrialized nations – infant mortality and expected life are only two. And we pay literally twice as much as any other nation.

    Why would anyone who respects the facts champion the system we now use? The US needs a better health care system.

  48. raff, Although not from Chicago, Governor Ryan was governing the Chicago Way. That corrupt culture infects the entire state. As you know, Ryan’s corruption caused the death of a family on the interstate in Wi.

  49. Annie and SMM,

    Maybe we all need to change what we are doing. Right now, people are restricted in what they think because they are terrified of “other” parties.

    Instead, I feel we need to articulate a real vision of what we do want. Everyone already knows that people from other parties are innately evil, horrible and won’t do what we want! So, we know this! Let’s articulate something else-what do you want?

    I want this to be a nation of laws, not wo/men. I want universal, single payer health care. If this Congress and this president aren’t up to doing those things (and I don’t think they are), then how can we accomplish what we affirmatively want for our nation?

    It’s going to take another try at Occupy or some new social justice movement. Slaves, women, labor–no one got the rights they deserved by supplicating the powerful. They fought for those rights. We can take a page out of the civil rights movement and get cracking.

  50. Mr. Sauce,

    The Founders provided you with adequate freedom to improve the healthcare insurance industry by starting your own superior insurance company. Competition increases operational effectiveness.

    Why don’t you take on the mission for the benefit of sympathetic, long suffering, uninsured societal “dependents,” the equity holders of your future corporation and yourself and your posterity?

    Where do the American Founders inform you of their overwhelming intent to confiscate and redistribute wealth for the “victim” or “sympathy case” du jour? Wasn’t your mentor, Mr. Marx?

  51. As I have explained before in the past, with bullet points, and with zero response from Obamacare fanatics:

    1) Doubling premiums, making health insurance unaffordable for the middle class = BAD
    2) Increasing deductibles 1100% = BAD
    3) Restricting drug formularies, and making any out of pocket purchase of off-formulary not count towards those atrocious deductibles = BAD
    4) Paying doctors so low to rein in those spiraling premiums that only 25% of doctors in CA accept Obamacare policies = BAD

    Anyone who continues to support Obamacare is supporting the above facts. And they share the responsibility for what this will do to the middle class, and its failure to improve health care for the poor.

  52. Jill, you’re right. It’ll take a HUGE outcry and sustained protests. Now… will that happen? Look what happened to Occupy.

  53. When all this settles, there will very likely be a firestorm in republican legislatures when people are kicked off and have no healthcare. Karen, California has its own exchange and will largely be unaffected.

  54. Annie, The protests have gone the other way. Texas and many other states have people protesting against government sponsored healthcare.

  55. John, I wonder if you are merely a non-AI software program that spits out slight variations on the same nonsense, because you never address the issues. And you continue to assume that anyone who disagrees with your 18th Century view of the world is a follower of Karl Marx.

  56. In REALITY,
    To get Single Payer it will take is a sustained public outcry and a Democratic President, a Democratic House and a Democratic Senate.

  57. Annie,

    You’re correct. Occupy was attacked by this govt and crushed. This struggle isn’t a short term struggle. We are facing tremendous odds. The powerful don’t like it when ordinary people demand justice. It is very scary to face a heavily armed govt. bent on destroying a social justice movement. There were plans to kill people in Occupy. Aside from that being extraordinarily terrifying, it means that kind of movement was working.

    So we will just have to gather our courage and form a social justice movement.

    SMM, Karen is correct to point out all the problems w/Obamacare. Terrible things are already happening to people under this law. That is why I say it’s a good time to unite with many people in service of two affirmative goods-the return of the rule of law and universal, single payer healthcare!

  58. Democrats had all that Annie, and this nation did not get universal, single payer healthcare. And which president? Obama? He crushed it!

    Look at the person and what they are doing. If we can’t learn from the past, we will repeat it.

  59. The courts need to decide soon because the 2015 enrollment period is quickly approaching and those in the affected states will be left with no insurance. It will be very hard on those with pre-existing conditions.

  60. Jill, Karen’s plans ( Health Savings Accounts) for healthcare would benefit the rich, the poor would be poop out of luck. Perhaps Karen has some new plan that would benefit everyone?

  61. Ra flaw,

    I just read what they wrote and observed the way they actually executed governance, conducted business and lived their lives.

    You somehow obtained the right to other people’s money, not understanding that money is best expended at the discretion of its owner.

    Karl Marx disagreed with the Founders and wrote the Communist Manifesto.
    If Karl Marx had agreed with the individual freedom and self-reliance provided by the Founders, he would not have written the Manifesto. If you understand the forced, mandated collectivism of the Manifesto, then you understand the freedom of the Preamble, Constitution and Bill of Rights.

    What do you think were the differences between the Manifesto and the Preamble, Constitution and Bill of Rights, or do you think they are the same?

  62. Mr. Sauce,

    What century did the Ten Commandments derive from?

    Have you seen fit to modify them?

    Oh, yeah! Call me stupid. Abortion, right?

    Yeah, forget that “Thou Shalt Not Kill” stuff.

  63. For our legal folks who have read the opinion, does this ruling mean that since I live in Texas and do NOT get any subsidy that my wife cannot take part in the Federal exchange? I will really be upset if the court takes away my wifes health insurance even though it costs us $635/mo. While not cheap, we need it to keep her alive since we cannot even GET any insurance without the ACA. I will be taking out my wrath on some folks if she dies because we cannot pay for her medical care.

  64. randy, I am not a lawyer but my husband is and he has expertise in healthcare law. As I understand it, she will still be covered as it winds its way to the Supreme Court. Now, should the Supreme Court side with this court’s decision she would lose her healthcare unless the state of Texas acted.

  65. Jill – the people in Occupy were its own worst enemy. They did not need help from the outside to make the movement fold.

  66. Why don’t we expand that marvelous “single payer” government run VA healthcare system, and let those unable to pay for insurance use that. And leave the rest of us, who were happy w/ our plan, ALONE.

  67. Ra flaw,

    I don’t get your reference to Republicans as if those liberals have some relationship to truly conservative positions. Romney started Romneycare (an unconstitutional collusion between government and industry) in Mass. for crying out loud. The Founders did not mandate government operation of any industry.

    Do you perceive a difference between Democrats and Republicans.

    In 2000, the Republicans had the Presidency, Senate and the House.

    Did they repeal or terminate the welfare state, abortion, rent control, affirmative action, “public” takeover of the education industry, illegal immigration, floated dollar, control of industry or any other directives from the Communist Manifesto?

    What party were the Framers and Founders in?

  68. SMM,

    More recently, guess again!

    Paul, no doubt Occupy had its problems. Still, when your govt. arrys against you, up to and including the willingness to kill people in the movement, this cannot be dismissed as having no consequences.

    The govt. has made protest, by both left and right wing opponents dangerous. The govt. has used the IRS to go after both its enemies on the right and left. It’s should not be easy to dismiss that power and uparmoured govt. arrayed against a group.

  69. Jill – my government only includes Arizona and the US. So which one of them was trying to kill Occupy members. I know they were raping, robbing and killing each other.

  70. Annie

    “Saucy and Raff, I think John channels the Founders daily, or so he would have us think.”

    You’re absolutely correct. I don’t understand it myself. I think I assimilated from my Grandfather that people worked and took care of themselves.

    There was no welfare state. People were free and they lived their lives. My father-in-law lived through the Depression and said, “You could always get a job. You might not like the job, but you could always get one.” Early on, he swept up a bakery. He took care of himself and his family.

    Freedom and self-reliance seems like what the Founders said.

    What would this thread; what would America be like if people just took care of themselves – obtianed their own healthcare or any other insurance, food, clothes, housing, cars, whatever?

    What would America be like if government were limited to security and infrastructure and life and industry were up to the free individual? Ever really read the Preamble?

    Yeah. I’m channeling that.

    I’m compelled. I’m passionate.

    I’m sorry.

    I apologize.

    I hope that’s polite.

  71. rafflaw

    I released your comment from the spam filter.
    You sir are a gentleman and a scholar, but I will not tell anyone.

  72. Mike Appleton

    It may well be that Congress did not “intend” to permit the states to destroy the law by refusing to create exchanges. The problem is that, in the absence of ambiguity, we determine what Congress intended by reference to what Congress said. If the language chosen by Congress does not reflect what was really intended, the solution is for Congress to adopt an amendment containing language which correctly reflects its intent. That is neither the function nor prerogative of the courts, at least if the notion of separation of powers is to mean anything.
    Very true Mike.

    In this case, however, we see that “ambiguity” has a narrow and a broad meaning, depending on the statutory character.

    This statute has revolutionary character in the sense that it catches us up to a world that left us 100 years ago in terms of “the common good.”

    A one-line statute has one degree of potential ambiguity, while a 10,000 line statute has another degree of ambiguity.

    The flat-earth and the global-earth cannot be construed by the same factual dynamics, even though analytical abstractions can be applied to both statutes.

    What congress expected to happen, then grow, the become embedded into the national fabric must be considered when construing where they were envisioned going, and where they began.

    That is what I meant when I said up-thread that the majority opinion was well done but too anal.

    They applied the legal hermeneutics used to analyze a sentence to a book.

  73. This decision is not a surprise. In fact the administration seemed to give itself another self inflicted gunshot wound last week by finding an exemption for the US territories. And the reasoning appears to be a direct contradiction to the argument made for calling the Federal government the “state”.

    When our controlling legal document talks about the many states, it’s pretty clear to me a national government is not part of that. Trying to change the definition of state now never was going to work. It may have been inadvertent, but the law is not, as Prof. Turley stated, ambiguous.

  74. This post is a day and a dollar short, but here goes. Seems to me that the healthcare service is out of line with the rest of the economy. Doctors get rich. My community is full of foreign doctors getting in the US for the big bucks. Pharmaceutical companies make pretty good coin. Just about anything else attached to healthcare seems pretty much like a gold mine at this point. Watched a PBS program on healthcare a few years ago, and the prices charged here for services compared to Germany and Japan are staggering. At that time (08-09…???) an MRI in Japan was $10. I know that is a little low, but that is what they were forced to charge. The Japanese felt this diagnostic tool saved a lot of money in the long term. I think something is wrong with US healthcare as a protected industry of government and AMA–not being subject to market forces at all, and maybe everyone should start there. The way costs keep rising, there isn’t enough gold on the planet to pay for where they are going. I don’t think this whole argument is warranted when there is a larger problem that needs addressed elsewhere.

  75. John wrote “My father-in-law lived through the Depression and said, ‘You could always get a job. You might not like the job, but you could always get one’.”

    That explains a lot. What he said was total horse patties, as the unemployment rate was 25%. There are plenty of photos showing men riding the rails to find work, signs along the lines of “Unemployed men, just keep on going, because we cannot take care of our own,” men selling apples on a street corner, and families living in shanty-towns, a/k/a Hoovervilles.

    You and your father-in-law experienced good fortune and you assume, wrongly, that people complaining of unemployment are just losers. Today, if one has a job, life is relatively good. One can transfer to another job. But if one is laid-off for any reason, that person has a high likelihood of staying unemployed because of intolerant people like you assuming there is something wrong with that person.

  76. Great insights on a skim of the article, but what a pile of issues. Comments are enlightening. It just proves to me that so much needs to be fixed. ACA or no ACA, where does it lead? I don’t see a positive outcome for the consumer here with any model. May help in the interim. And I am one of lucky ones with good insurance through my wife’s employer. The math on the rising costs of all of this is alarming. This still needs to be contained or the budget of the country will be healthcare and military spending.

  77. The only questions that remains is:

    Will the judicial branch execute a coup d’état in America?

    Forget the Fourth branch of government,

    It will then be time for the military to intervene.

    America is beyond the pale.

  78. lmao keep on thinking the people will run anything ever again in corporation i love how some people are still being fooled by the corporation. the elites own both sides of the corporation from top to bottom..

    but hey allow the distractions to keep on. when the truth hits it will not be so funny or good

  79. John wrote “Will the judicial branch execute a coup d’état in America?”

    We hear this nonsense all the time. Righties, especially gun bunnies, seriously worried that Clinton would trash the Constitution and stay in office forever. Lefties seriously worried that Bush II would do the same. The judicial angle is fresh, but hardly surprising. I am old enough to know that whenever the economy suffers, conspiracy theories abound. The early 1980s, the first time gold prices went through the roof, was a really good time for paranoia.

    By the way, you recently asked me what I was doing here. Since you did, I published two blog articles (saucymugwump.blogspot.com):
    – Mormon misinformation, libertarian lunacy, and polygamist Pollyannas
    – FICTION: The demise and resurrection of North Korea

    The second, the most recent one, is rather long, almost a short book. Some of us are talented enough to multi-task.

    P.S. To paraphrase Stalin, how many divisions does the judicial branch have?

  80. To all the lefties who are upset, I point out that Mr Turley anticipated your whining when he wrote, above, roughly para 11: “While many will simply dismiss this as a predictable move by Republican appointees, I believe that that claim unfair to these judges, unsupported by the decision, and a continuation of our rather poisonous political debate where every opposing voice is denounced as without honor or good faith.”

  81. “… where every opposing voice is denounced as without honor or good faith.” Looks like Mr Turley reads his own blog.

  82. John,
    One big problem with your premise to substitute the word business. If you are referring to corporations, they are a fictional entity established to allow for the protection of individual owners property if the corporation fails. If you are suggesting that the Founders expected that the Supreme Court would consider corporations as people, please provide some evidence.

  83. Saucy:

    A constant, perhaps The Constant, conflict of man’s infestation of the Earth.

    Force will always try to kill Ideas; it’s only when Ideas rally with stronger, opposing force that Force is defeated.

    Our Constitution, a product of Ideas (Madison, Jefferson, Adams, et al), survived only because the force (Washington)y of Ideas, frankly, got lucky and outlasted Force. (Some, including me, don’t really believe we “got lucky”. In God We Trust.)

    Stalin knew what he was saying. He just didn’t know what he was doing.

  84. “That explains a lot. What he said was total horse patties, as the unemployment rate was 25%.”

    Thanks for pointing out the BS. Even today at much lower UI rate there are 3 candidates for every job opening.

    Most of those had good jobs and careers before unemployment. Some do catch another job within 6 months. But 6 months is a dividing line. For those the who remain unemployed after 6 months the prospects are bleak and become worse with every passing month.

    Firms are reluctant to take a chance on someone who has been unemployed so long.

    And the problem is compounded by arrogant, ignorant people who assume that those unemployed for long periods have problems.

    Their problem is that they do not have a job. And that fact is due largely to choices that we make as a society such as the trade balance we set through international agreements and monetary policy.

    What is amazing is that the unemployed and the underemployed are so complacent and accepting of their government manufactured misery.

    This country could put people back to work starting tomorrow if our elected representatives wanted to do that.

  85. bigfatmike wrote “Even today at much lower UI rate there are 3 candidates for every job opening”

    I’ve been told by recruiters that if you are not within the first 50 or so applicants, you have zero chance of getting the job. And this makes perfect sense. How can companies sift through thousands of resumes?

    And the U6 unemployment rate, currently at 12.1%, hints at how many people are working part-time jobs or even multiple part-time jobs just to survive.

    “due largely to choices that we make as a society such as the trade balance we set through international agreements and monetary policy”

    Yeah, it always amuses me how people can state that there are plenty of jobs when millions of them have been outsourced overseas. And outsourcing is gathering steam.

    “This country could put people back to work starting tomorrow if our elected representatives wanted to do that”

    If I were somehow elected president, one of the first things I would do prohibit the use of H-1B visas for people with only a bachelor’s degree because those people merely take the jobs of Americans. H-1B visas for people with a master’s degree or PhD are different, because those people have specialized skills (assuming that the degrees are comparable with U.S. universities, of course, which is not always the case). Not to mention flat-out visa fraud where companies use B-1 temporary visas to bring in long-term workers, with Infosys being the best example.

  86. Steve H wrote “Stalin knew what he was saying. He just didn’t know what he was doing.”

    If I understand you correctly, I agree. He was a brutal, sadistic thug with a clear idea of what he wanted to do. Other world leaders were fooled, I believe, because they just could not believe a world leader could be so evil.

    As for the second half of your comment, his actions from 1937-1942 prove it. The Soviet Union was capable of crushing the Nazis, but competent leadership was needed.

  87. saucy – larger companies have computer programs that sift thru the resumes to find key words and score them. Top scores are then passed on to the interviewers.

  88. There has been some discussion here regarding the legal reasoning of two contradictory decisions regarding ACA and subsidies.

    Emily Badger over at wonkblog:


    points out that people who actually drafted the legislation filed an amicus brief laying out their intended meaning of the legislation – and it was not to limit subsidies only to state exchanges.

    If legislative intent and legislative history have carry any weight in judicial decisions then this will be a blip for historians to write about.

    Of course there are some who hold that some judges are political hacks.

  89. saucy – Stalin wiped out his generals prior to the Nazi invasion, leaving the Soviets leaderless until they could get some cream to the top, plus getting the Germans to over-extend themselves. The best general the Allies had was Hitler.

  90. bfm – it does matter what the purported authors say they meant, no one had read the darn thing before it was passed. Remember “We have to pass it to find out what’s in it.”

  91. Laurence Tribe just said he “wouldn’t bet the ranch on this monstrous law surviving. It was passed in the middle of the night and NOBODY knew what was in it according to Pelosi. There are consequences for haste and incompetence. This ain’t Chicago!

  92. Paul wrote “larger companies have computer programs that sift thru the resumes to find key words and score them”

    Most companies have this now. More than a few have gone full circle and outsourced their entire HR function to India. All of the larger companies use one of a handful of vendors, e.g. Taleo.

    But that is all irrelevant because everyone knows the game of adding keywords to resumes to maximize hits. People can still only look at so many resumes before their eyes glass over.

    “Stalin wiped out his generals prior to the Nazi invasion”

    Certainly not all. The number lies between 7.5% and 30% of officers, with some of them being brought back after the Nazis invaded, with Konstantin Rokossovsky being perhaps the best example. And that was why I started my time line at 1937 because that’s when the military purges began.

    “getting the Germans to over-extend themselves”

    If Hitler had not stupidly split his forces to seize oil fields in the Caucasus Mountains region, the Nazis could have taken Stalingrad, which might have made a difference. I visited St. Petersburg and saw the old signs warning people that one side of the street was dangerous during periods of artillery shelling. The Nazis were so close to taking the city.

  93. Nick wrote “It was passed in the middle of the night and NOBODY knew what was in it”

    Sorry to break it to you, but that’s how Congress does business now. Read the history of the Patriot Act and you will discover that there was no time for debate or even reading the entire bill. Congress outsourced its function to lobbyists a long time ago.

  94. JT was is on NPR and Fox today. That’s diversity. I like that he’s on both. I use both halves of my brain.

  95. http://talkingpointsmemo.com/dc/obamacare-subsidies-case-supreme-court “For the Supreme Court to accept a case, four justices have to agree to it. But whether the Supreme Court takes any given case for review depends on several hard-to-predict factors. A split among the circuit courts on the validity of a major federal law enhances the chances of the Supreme Court getting involved, legal experts say. But it’s possible that if the D.C. Circuit ruling is reversed and the 4th Circuit ruling stands, there will be no split and the Supreme Court may be likelier to turn it down and let the rulings upholding the law stand.

    “If the circuits don’t split — if the D.C. Circuit does reverse it en banc, the absence of a circuit split will diminish the likelihood that the Supreme Court will hear the case. But even in the absence of a circuit split the Court could hear it,” Bagley said.

    The White House would prefer not to re-litigate the health care law at the Supreme Court, where five Republican-appointed justices have a demonstrated hostility toward the law. In 2012, four of them voted to wipe out Obamacare in its entirety; the swing vote, Chief Justice John Roberts, made the Medicaid expansion optional for states. Last month, the five justices axed a requirement under the law that employers cover emergency contraceptives for women in their insurance plans at no extra cost.

    But Goldstein suggested the odds remain daunting for conservatives, who are seeking to destroy an essential component of a massive new law on the basis of a dubious technicality. Roberts, for all his misgivings, proved unwilling to deal a fatal blow to Obamacare in 2012. And now that millions of Americans are benefiting from the law’s federal subsidies, stripping them away is a difficult proposition.

    Goldstein predicted “the administration probably will come out ahead in the end.””

  96. http://www.newrepublic.com/article/118803/halbig-v-burwell-ruling-anti-obamacare-lawsuit-could-backfire-gop “But it would needlessly create significant hardship for millions of people. If Congress didn’t act, and red-state governors threw their middle- and low-income constituents under the bus, they’d saddle the country with a two-tiered health care system, in which residents of blue states have functioning insurance markets and near-universal coverage, and residents of red states are consigned to dysfunction and high rates of uninsurance. Which is another reason it probably won’t happen. But Congress should just fix the problem now, just to be sure. There’s no responsible reason not to.”

  97. Kelly needs to decaf! What a contrast between her manic speech and JT’s calm and measured demeanor. He and Laurence Tribe both think this may be the beginning of the end. But, time will tell.

  98. Feynman, Great to have you back. “Bet the ranch” was Tribe’s quote today after the decisions. Monstrous is my word. And, by any measure it is a monstrous bill in size. If I offended your delicate sensibilities by using monstrous then please accept my deepest apologies. I never want to offend a genteel person like yourself. It is a tough time for folks like you. Would you like a cold beverage?

  99. I wish Prof Turley would give us all a heads up when he hits TV. That is the only way you can get me to watch FAUX news.

  100. He almost always posts it on his Twitter account which is always live on this blog, near the top.

  101. Imagine how much it hurts Tribe to have his former student shredding the Constitution. He needs a large adult beverage.

  102. Nick,

    History teachers know that quotes are important. Your “quote” from Tribe was inaccurate and falsely represented his position. To put it the nicest way possible – it is ‘intellectually dishones’, a trait that you condemn.

  103. John Oliver

    How unimpressive and predictable. You need some new material.
    It isn’t written for nor linked to for you.

    Don’t despair, it is not about you.

    It is for people who do not yet know everything and can therefore learn something new (The Peak Of The Oil Wars – 10).

  104. Paul C. Schulte

    Jill – the people in Occupy were its own worst enemy. They did not need help from the outside to make the movement fold.
    Your understanding of history warps out again.

    Occupy is still alive and well.

    Just because the military NSA has not folded yet does not make them homies.

  105. Nick Spinelli

    JT was is on NPR and Fox today. That’s diversity. I like that he’s on both. I use both halves of my brain.
    The olde left and right brain myth.

    Everyone has come across this popular notion of left or right brain dominance, which determines a person’s way of thinking and his/her personality. This notion, however, is a widely held misconception. Here we will discuss the concept of this notion, known as hemisphericity or hemispheric dominance, how it arose, and why it is a misconception.”

    Have you ever heard people say that they tend to be more of a right-brain or left-brain thinker? From books to television programs, you’ve probably heard the phrase mentioned numerous times or perhaps you’ve even taken an online test to determine which type best describes you. Given the popularity of the idea of “right brained” and “left brained” thinkers, it might surprise you learn learn that this idea is little more than a myth.”

    It might be possible that anecdotally you could dissuade the psychology hobby lobby otherwise.

  106. Here’s what I believe is likely to happen. The DC Circuit will issue an en banc opinion reversing the panel decision, thus eliminating the conflict with the 4th Circuit. The Supreme Court will reject any cert efforts with profound relief.

  107. “While the court agreed that Marbury had a right to have his papers delivered, it also ruled that it could not compel Madison to do so. It held that the law that allowed Marbury to sue was in itself unconstitutional because…

    …Congress could not extend a court’s jurisdiction beyond what the Constitution provided. This case defined the boundary between the executive and judicial branches.”

    Intent IS the purview of the legislative branch and it IS NOT the purview of the judicial branch.

  108. And blatant usurpation, treason, corruption, subversion and insurrection.

    Obviously the judicial branch knows the ACA law is flawed. The judicial has no authority to modify and usurps when it does. The DC Circuit will be engaging in politics, not its purview. It also knows that intent is a legislative issue. The judicial branch cannot continue to “legislate from the bench” with impunity.

    Beyond the pale.

    Edmund Burke

    “When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”

  109. John:

    I believe I know what you are attempting to say, but I also believe that your perception of the limitations on judicial review are inaccurate. The legislature codifies public policy through the enactment of laws. The courts are called upon from time to time to determine the constitutionality or laws or their proper application to a specific set of facts. In the course of performing that function, the courts must frequently construe the meaning of language chosen by the legislature. If the language is ambiguous or subject to more than one reasonable interpretation, the courts attempt to construe the language in a manner which is both consistent with other provisions in the same statute and which conforms with the intention of the legislature. Sometimes that intention is expressed in the language itself; other times it must be gleaned from the legislative history. There is nothing magical, mysterious or menacing about this process.

  110. Mike – your explanation is excellent until you get to the end.

    There is nothing magical, mysterious or menacing about this process.

    When two circuits come to conflicting decisions using the same information within the space of 24 hours, There is something magical, mysterious or menacing about this process.

  111. Paul C.:

    Hey, I only said that the process isn’t mysterious; I’ll admit that sometimes the conclusion is.

  112. MA,

    I think the concept of freedom has been over intellectualized for purposes of usurpation by the powers that be.

    If you can’t dazzle ’em with brilliance, baffle ’em with b——-.

    Ultimately, the one who gets there the firstest with the mostest wins.

    I appreciate your intellect and eloquence but somehow you miss the point of living with the consequences of a policy of freedom through self-reliance.

    Marie Antoinette thought things ran by the rules of monarchy, until the advent of the guillotine.

    Thank you

  113. MA,

    If the Founders’ brand of freedom existed today, we wouldn’t be adjudicating an aspect of a private business (or publicly held) in the private sector because government would not be interfering. Since the Preamble, Constitution and Bill of Rights have been found “not binding” or misinterpreted to allow governmental control of private industry, we are (in fact, there are no more binding words than those in the Preamble, but I digress).

    Further misunderstanding has led to the false belief that the judicial branch has the authority to legislate or modify legislation. It does not. Period. That is not open to debate. Interpretation is flawed. It is biased and arbitrary and that has led to the current impasse. In the event that there is disagreement among judges on the DC Circuit, presumption that a “vote” can be taken will constitute usurpation. A “vote” will inexorably lead to a split along party lines, which, as you well know and will be forced by intellect and honor to admit, is the function of elected officials in the Congress.



    ONLY the Congress has the power to legislate.

    Only the Congress has the power to VOTE along party lines.

    The judicial branch should be held in contempt of Congress if it “construes” (an act which inherently has the potential to misconstrue and should be avoided for that reason), rewrites or modifies any law. A simple rejection of unclear and ambiguous language would compel the Congress (i.e. the people who have all the power) to modify its own law. If the judicial branch writes, rewrites, modifies or “construes” a law, it runs the risk of making an egregious error and is unequivocally an act of subversion. Corrective action must be taken by the authority in whom the power is vested and that is the people through its Congress.

    The function and only function of the judicial branch is to determine if a defendant has comported with the law or Constitution. Not to write law.

    It is VERY dangerous to suggest that because a court has held session previously, it knows the legislation and the intent thereof, better than the representatives elected by the people. The holders of the power are at that point denied their power and that power is then abused by the judicial branch. No judiciary knows anything better than the people and their elected representatives. The people and their Congress know the motivation and genesis of the thesis of legislation; the sentiment which legal expertise has nothing to do with. When the judicial branch reaches a semantic impasse, the legislation must revert to the people (i.e. Congress) for modification and correction.

    Ultimately, it is ill-founded arrogance that leads any court to presume to represent the people in the precise generation and perpetuation of law.

    Frankly, I cannot believe any attorney or justice would begin to have this conversation and that even the APPEARANCE of this conflict of interest, nay, conflict of power, would be engendered for fear of prosecution.

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