230px-CPR_training-04190px-Falk,_Benjamin_J._(1853-1925)_-_Eugen_Sandow_(1867-1925)Below is my column today in the Chicago Tribune on the rivaling rulings in the D.C. Circuit and the Fourth Circuit over a critical provision under the Patient Protection and Affordable Care Act (ACA). As an academic interesting in statutory interpretation and legisprudence, the opinions are fascinating and capture two different but well-argued views of the role of both courts and agencies in dealing with legislative language.

Call it the “Tale of Two Circuits.” It was either the best of times or the worst of times yesterday for Obamacare.

Within hours of each other yesterday, two federal appellate courts looked at the Patient Protection and Affordable Care Act (ACA) on the same issue involving the same provision and came to diametrically opposite conclusions.

In Halbig v. Burwell, the D.C. Circuit ruled that the Obama Administration changed the meaning of the ACA and wrongly extended billions of tax credits to citizens without congressional authority. It was a stunning loss for the Administration. However, a couple hours later, the neighboring Fourth Circuit across the river ruled in King v. Burwell. That three-judge panel ruled that the Administration was perfectly within its rights to interpret the law in this fashion. Depending on which bank of the Potomac you stand on, Obamacare is either in robust health or on life support.

While the decisions have caused a whirlwind of political controversy, neither really turn on the question of national health care. Indeed, these two cases represent well reasoned but conflicting views of the role of court in statutory interpretation. The conclusion of these rivaling approaches hold the very viability of the ACA in the balance. That answer may have to wait for another appeal to the full courts of these respective circuits and ultimately an appeal to the United States Supreme Court.

In Halbig, Judge Thomas B. Griffith ruled that the statute is clearly worded on a key point of the law. At issue is the very thumping heart of the Obamacare: the system of state and federal “exchanges” through which citizens are required to purchase insurance. The law links the availability of tax credits to those states with exchanges “established by the state.” However, the Administration was caught by surprise when some 36 states opted not to create state exchanges. That represented a major threat to Obamacare. Without the credits, insurance would be “unaffordable” for millions of citizens who can then claim an exemption from the ACA. It would allow a mass exodus from the law – precisely what many citizens and critics have wanted.

To avoid that threat, the Obama Administration released a new interpretation that effectively read out “state” from the language – announcing that tax credits would be available to even states with only a federal exchange.
The D.C. Circuit ruled that the “interpretation” was really a re-writing of the federal law and that President Obama had over-reached his authority in violation of congressional power.

The Fourth Circuit came to the opposite conclusion. The court believed that the IRS was entitled to deference by the courts in what these laws mean in cases of ambiguity. The panel considered the law to be unclear and found that it was reasonable for the IRS to adopt an interpretation that guaranteed tax credits to all citizens.

At the heart of the conflict is a fundamentally different view of the role not just of federal courts but also of federal agencies. I have long been a critic of the rise of a type of fourth branch within our system. The Framers created a tripartite system based on three equal branches. The interrelation of the branches guarantees that no branch could govern alone and protects individual liberty by from the concentration of power in any one branch.

We now have a massive system of 15 departments, 69 agencies and 383 nonmilitary sub-agencies with almost three million employees. Citizens today are ten times more likely to be the subject of an agency court ruling than a federal court ruling. The vast majority of “laws” in this country are actually regulations promulgated by agencies, which tend to be practically insulated and removed from most citizens.

The Supreme Court ruled in 1984 in Chevron that agencies are entitled to heavy deference in their interpretations of laws. That decision has helped fuel the growth of the power of federal agencies in this fourth branch. The court went even further recently in Arlington v. FCC in giving deference to agencies even in defining their own jurisdiction. In dissent, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

Regardless of the merits of the statutory debate over the ACA, the question comes down to who should make such decisions. For my part, I agree with the change but I disagree with the unilateral means that the President used to secure it. President Obama has pledged to “go it alone” in circumventing opposition in Congress. The Fourth Circuit decision will certainly help him fulfill that pledge. The result is that our model of governance is changing not by any vote of the public but by these insular acts of institutional acquiescence.

The court may call this merely deferring to an agency but it represents something far greater and, in my view, far more dangerous. It is the ascendance of a fourth branch in a constitutional system designed for only three.

Jonathan Turley is the Shapiro Professor of Public Interest Law and has testified before Congress on the constitutional implications of the health care cases.


  1. Nick: A Republican candidate in W. Va is claiming he actually supported Obamacare in TV ads.

    Oliver: If Turley or any of the others who actually understood natural rights, brought them up in a discussion on healthcare, then they would add context.

    Rousseau understood that natural rights are best protected and insured within a collaborating society. You think natural right means govt has no business telling you what to do, as long as you know what’s good and moral. Problem is that too many of you “natural righters” think that it’s good and moral to shoot someone for being in the wrong place (castle and stand-yer-ground laws), or preventing disease and starvation among the poor and indigent is morally reprehensible, or restricting industry from spoiling the water or fouling the air is an infringement on “natural rights”.

    Natural rights was used as justification to wipeout the Native Americans and decimate the natural resources of this nation, natural rights were cited as the rationalization behind slavery, and natural rights is the reason so many cement-headed Americans want the govt to go away.

    You must not have been here back when a story was featured about the New Jersey man who beat his wife to death for failing to cook his goat properly, claiming it was his “natural right” as a husband.

    Your ideas are not your own, Oliver, they merely confirm your bias.

  2. You’re probably right “C”; I need to remember my audience. It’s actually pretty pathetic that in a discussion on such a controversial law that a mention of natural rights requires MORE context. Wow!

  3. Politicians are voted out of office RTC, but incompetent govt. employees are rarely fired. Time will tell RTC, but Dems are running away from Obama and Obamacare currently. 2014 comes before 2016[that’s a profound prediction] and I see Dems taking it on the chin. But, 2 years is a lifetime in politics.

  4. Oliver: Whenever someone starts yammering on about natural rights and moral absolutes, they’re usually full of –it. So far, all I’ve seen from you are quotes that you paste that don’t fit the context.

    There’s someone else who likes to lean on the wisdom of others with no real understanding of what his role models are actually saying.

    What I notice about the people who really understand the concepts you purport to is that when they use a quote, it’s as a launching point to expound on an idea. You use quotes as the last word. I’m sure they mean something to you and you found them terribly enlightening, but you clearly haven’t absorbed them enough to be in full possession of their ultimate meaning, let alone to render the concepts usable in any practical form.

  5. Nick: I’ve seen you use the term “FIB”. I don’t care. I have a lot close relations in Wisconsin; it’s all good, buddy.

    But there are a lot of businesses that remain in viable despite glaring incompetence. Bechtel is a glaring example. Being from Wisconsin, you oughta know that the power plant designed and built for WE Energies in Oak Creek by Bechtel hasn’t operated at more than thirty – forty per cent capacity after nearly eight years.

    When govt doesn’t perform its job, politicians are voted out of office. The recent phenomena taking over is to make govt look incompetent so that citizens don’t get the idea that its something to count on. That was the operating model after Katrina, the motive was to destroy the peoples confidence in govt.

    To get back on topic, the people are going to want Obamacare and it will become a campaign issue in 2016

  6. What do you call an organization that takes money in exchange for a product or service? More importantly, what do you call one that takes the money and fails to provide the product or service? In the private sector, gone; if politically connected, subsidized; and if in the public sector, under-staffed and under-funded.

    Okay, this pinhead is heading back to the sandbox.

  7. RTC, I use the term “flatlander.” It goes back to having kids. I didn’t want to have to translate the FIB acronym so I went w/ the G rated ball bust.

  8. It’s difficult for an incompetent biz to remain viable. Government is incompetent and there are no consequences.

  9. RTC,
    It’s not that I don’t know what I’m talking about, it’s that you don’t know what I’m talking about. What’s worse is that you won’t make an effort to figure it out.

    If you believe I’m wrong then explain where and explain why. I’m willing to learn new things, are you?

  10. After horrible failures the govt. often goes to private business CEO’s to end utter incompetence. The VA is the most recent example. The Obama Administration has the lowest # of private sector people and it certainly shows.

  11. Nick: If you want go back 50 – 100 years in time, and include resaurants and bars, sure it’s probably in the millions. The point Karen was making was no business can be incompetent and stay in business. Not all of yer millions went under due to incompetence. Many were poorly capitalized, or had bad models, or were the victims of a changing economy, customer base, or demographics. Thousands were poorly marketed (not the type of incompetence that Karen was referring to).

    The mistake you’re both making is equating government with business. Government does not, cannot, and should not operate like a business. Only a pinhead would think that it should.

    Incidentally, the size of government has shrunk under Obama. There are fewer government workers, as retiree and resignees have gone unreplaced.

    Agencies don’t go away for the simple reason that they are formed to perform a function for We the People, like the SEC. Under Reagan, we were given deregulated banking and fewer examiners. In my view, if you want to bring the Wild West to Wall St. then you need to have more sheriffs on hand to keep an eye on the saloons.

  12. Professor Turley: I hope the term “Cheesehead” will not be viewed as an uncivil term. Nick and I banter in this fashion. I cheerfully bear the term “FIB”, I think Nick actually wears a Packers Cheesehead hat while posting here.

  13. “Sometimes I nail it, sometimes I’m flatout wrong.”
    And a broken clock is correct twice a day. When you live in a culture without moral absolutes; when you have a dependent electorate; and when you elect representatives to secure your wants and not your natural rights, then it’s a good thing your self-esteem doesn’t hinge on your success with those predictions.

  14. Nick: You’re the one who said that recalcitrant usually implies a rebellious minority, I merely provided clarification. I have no doubt that of your command of any number of ten dollar words.

    Those states are not acting in their own self interest, they’re acting out of purely political reasons at the expense of their citizens. There are more uninsured people in Texas than in any other, and they pay more for healthcare than the people of any other. Many people in Texas are simply too poor to afford healthcare. Normally, you would think that elected representatives in Texas would want to do whatever they could to improve the lot of their citizens, but they are refusing to for purely petty political reasons, which are underpinned by a believe that government has business helping its citizens, which itself is founded on the idea that government is something wholly apart from the people.

    I’m hoping that the Supreme Court comes down like the D.C. circuit did in Halbig, and voters make it clear what they want, which I think will be in favor of Obamacare. If that’s the case, I look for a change in party control of gubernatorial seats in Texas…and in Wisconsin. Or maybe you cheeseheads will chalk up the change to a scandal-plagued nincompoop.

  15. LOL! I know you’ll pounce on my Negroni influenced math, RTC. 50 million business closures in the last century. That’s my final answer.

  16. I amend that to 100 million businesses closing in the last century. My math can be off in the evening! Govt. has grown exponentially in those 100 years and virtually no agencies have closed.

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