A TALE OF TWO CIRCUITS: OBAMACARE IS EITHER ON LIFE SUPPORT OR IN ROBUST HEALTH

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.

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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.

275 thoughts on “A TALE OF TWO CIRCUITS: OBAMACARE IS EITHER ON LIFE SUPPORT OR IN ROBUST HEALTH”

  1. RTC, Class envy is not becoming. You’re better than that. I grew up in a blue collar, ethnic family. We did not revere nor despise people better off than us. We were taught to be educated, work hard, and you will do well. My parents were absolutely correct. Envy is one of the Seven Deadly Sins.

  2. “The rich man getting richer hasn’t helped form a robust middle class, it’s destroying it.”

    Precisely Annie: That’s why i call it Siphon Up Economics rather than Trickle Down.

  3. Oliver: Since you’re having trouble with the your definitions, I thought I’d help you along. After all, that’s only fair. If you’re going to use vague generalities, then anyone can simply supply their own meaning.

    “Legal plunder is the use of the law that results in the infringement of natural, unalienable rights.”

    “If you really are interested in the needy then take the time to look beyond the constitutionality of things and ask yourself if the law enables plunder.

    Legal plunder= what is that, what, to you is plunder. All I get from that term is “Wah,wah,wah”.

    Infringement = How exactly?

    Natural, unalienable rights. = Big hurdle, I know, but try to define these as you see them.

    These two clauses indicate to me that you’re closer to Norquist’s philosophy anything dealing with justice. If you think the food stamp program was “plunder”, then I urge you to seek counseling.

    “Wealth is not for government to distribute; to ANYONE.”

    You know who would disagree with you? Milton Friedman, the patron saint of pain and suffering. When the Great Depression hit, he thought you government should have released its reserves and printed more money. He also was a proponent of the idea that everyone in America should receive a guaranteed income, regardless of whether they worked or not.

    You probably thought Friedman got his Nobel Prize in economics for finding a way to cause more suffering throughout the world than the Civil War, WWII, and the great Depression combined, but instead it was for defining the velocity of money. Turns out, the more money that is spent, the more wealth is created; it’s almost magical the way it happens. That’s why taking the miniscule portion of revenues the govt takes in and giving it to the truly needy (<emtruly needy), not only is the problem of malnutrition ameliorated, farmers are guaranteed a market for their surpluses, which supports prices.

    BTW, Jefferson thought that everyone’s wealth should, upon death, return to the government, “from whence it came”.

    “Wealth is for people to earn and the role of government is to provide the best environment for that earning to take place.”

    Do you mean the kind of environment it provided to industrialists like Pullman, and the mining companies at the turn of the last century, or by regulating safety in the workplace, because I gotta tell ya, there’s a world of difference. If you want to treat this as a rhetorical question, that’s OK. I expect you to remain as vague as ever on this one.

    “The Preamble to the Constitution is a good start when defining what government should do to provide that environment.”

    You can find a lot of legal scholars who’ll tell you that providing for the general welfare would allow the govt to provide food, housing, education, and healthcare, not to mention regulating the economy, among other things.

    “Unfortunately, (as has been pointed out here), unalienable rights no longer have meaning because their security is no longer understood to be the fundamental purpose for government.”

    Pointed out where? By you? I don’t think so.

    If “unalienable” rights no longer have meaning, then why don’t you remind us of what they are, specifically, so that we may examine them and decide if we agree – or if you know what you’re talking about.

    One of the inalienable rights that has been lost is the right for the people to determine for themselves what the fundamental purposes of govt is. I believe that govt has a purpose to protect citizens from consumer fraud and unethical financial dealings; to regulate markets where citizens lack expertise and sophistication to make knowledgeable decisions. To keep lead paint out of the toy store, and melamine out of our dog food. To ensure safe food and drug production and handling. To prevent the tyranny of monopolistic businesses from abusing workers and consumers alike. To ensure that industries behave responsibly by not polluting natural resources and depriving the people of their use. And yes, to provide a measure of relief to those who suffer misfortune.

    Because a starving people will trade freedom for slavery.

  4. on 1, July 25, 2014 at 8:34 pmRTC
    J. Oliver: “I vote in opposition to legal plunder.”

    And you define legal plunder as how…? The way Grover Norquist defines it, or the way Elizabeth Warren defines it. Because the way I see it wealth has been distributed up the food chain to the Banksters and the charlatans of Wall St.

    There has never, ever been any “wealth” distributed to the neediest in America.

    Thirty years of tax cuts and deregulation designed to produce “trickle down” economics resulted in “siphon up” thievery.

    ********************************
    Precisely. And shills like Oliver do their public relations in the guise of Constitutionalism. Don’t they realize they’re being used? The rich man getting richer hasn’t helped form a robust middle class, it’s destroying it. After all who is it that spends more money buying goods, which strengthens the economy? Five percent of the population, or the other 95 %?

  5. Seriously Oliver: “Legal plunder is the use of the law that results in the infringement of natural, unalienable rights.”

    Could you be a little more vague? You might as well be saying that you salute the American flag and all it stands for. If you want any respect around here, as opposed to cheerleaders and supporters who deal in the same type of generalities, you need to specifically define these natural, inalienable rights you’re talking about.

    You do realize that lawyers from both sides of the political divide can see through you gauzy terms, don’t you?

  6. RTC,
    Legal plunder is the use of the law that results in the infringement of natural, unalienable rights. Wealth is not for government to distribute; to ANYONE. Wealth is for people to earn and the role of government is to provide the best environment for that earning to take place.

    The Preamble to the Constitution is a good start when defining what government should do to provide that environment. While everyone focuses on the constitutionality of things, it’s proven to be a weak barrier to the unscrupulous designs of lawmakers; on BOTH sides of the aisle. Ultimately, what should define good government for Norquist, Warren, Conservative, Liberal, Republican, Democrat and any other “special interest”, is how well does it secure those natural rights; for EVERYONE. Unfortunately, (as has been pointed out here), unalienable rights no longer have meaning because their security is no longer understood to be the fundamental purpose for government.

    If you really are interested in the needy then take the time to look beyond the constitutionality of things and ask yourself if the law enables plunder.

  7. Been there done that, “screwed by my attorney) Wonder where the attorneys on both sides of these cases stand in their personal beliefs and concerns.

  8. J. Oliver: “I vote in opposition to legal plunder.”

    And you define legal plunder as how…? The way Grover Norquist defines it, or the way Elizabeth Warren defines it. Because the way I see it wealth has been distributed up the food chain to the Banksters and the charlatans of Wall St.

    There has never, ever been any “wealth” distributed to the neediest in America.

    Thirty years of tax cuts and deregulation designed to produce “trickle down” economics resulted in “siphon up” thievery.

    And what Mike A. said.

  9. MA,
    I’m not debating the natural, unalienable rights that are the basis of our constitutional republic. That “variety” is not in question unless one is trying to invalidate our form of government.

    Your assertion that the mere mention of natural rights is pointless, in a discussion about law no less, is in and of itself, a significant point.

  10. leej, I worked on med malpractice cases defending docs that made me sick. But, if you’re a professional you do you your job. I also worked cases where the docs were being wrongfully accused. I see both sides. But, like so many professions, they protect their own, even the horrible ones. You know all too well. But, to get screwed by your attorney is even worse, IMO.

  11. (Nick, you’re right. I forgot this where I “met” him. He has had it for a while. Kind of surprising to see how many docs engage in criminal activity (and thankfully get caught)”

  12. Before you begin debating natural rights, it would be wise to define the topic with a bit more clarity. There are a variety of theories of natural rights. Simply tossing out the phrase in the course of a discussion is pointless.

  13. leej, Thanks for the link. Patric has not been here for a while. I didn’t know he had a blog.

  14. RTC,
    Who the negatively affected class is depends largely on which political party is making the law. Frederic Bastiat captures this perfectly: http://bastiat.org/en/the_law.html#SECTION_G016

    My defense of natural rights is in opposition to any party/government that will use the backdrop of constitutional authority to redistribute property from one class to another; to enact social justice on one generation for the evils of another; and to secure their own political existence by subjugating the citizens to a system of education wholly inadequate for good citizenship.

    Before you believe that pigeon-holes me to one particular party, it does not. I’m registered Independent and don’t vote based on party. I vote in opposition to legal plunder.

  15. RTC,
    Who the negatively affected class is depends largely on which political party is making the law. Frederic Bastiat captures this perfectly:

    “Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter — by peaceful or revolutionary means — into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

    Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws! Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.” The Law

  16. RTC,
    “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”.”

    Your ad hominem comments really weakens what is probably a valid, passionate assessment regarding many that will use the law (or lack of law) to infringe the rights of others. What’s ridiculous is needing a law to provide citizens a natural right of self-defense. Much of what passes for law today is a result of allowing government to infringe the rights of a certain class of citizens in favor of another class.

  17. RTC,
    “Rousseau understood that natural rights are best protected and insured within a collaborating society.”
    It doesn’t require an advanced degree to understand there’s safety in numbers. As Mespo mentioned regarding the Hobbesian view on the security of life and property while in the state of war and my comment regarding Locke’s view on the social contract; the framer’s understood quite clearly the natural right to life, liberty and property were best secured within a civil society. The unknown was what form of government would provide the best balance between security and liberty.

    “You think natural right means govt has no business telling you what to do, as long as you know what’s good and moral.”

    That would be an understandable conclusion and completely incorrect. At the risk of being redundant (previously posted in this thread), if one believes as I do that Jefferson had it correct in the Declaration regarding self-evident truths, then it follows government is necessary and government does have “business” (interesting choice of words given your previous comment about government and business) consistent with the powers the People provided in the constitution.

  18. CTR,
    “Rousseau understood that natural rights are best protected and insured within a collaborating society.”

    It doesn’t require an advanced degree to understand there’s safety in numbers. As Mespo mentioned regarding the Hobbesian view on the security of life and property while in the state of war and my comment regarding Locke’s view on the social contract; the framer’s understood quite clearly the natural right to life, liberty and property were best secured within a civil society. The unknown was what form of government would provide the best balance between security and liberty.

    “You think natural right means govt has no business telling you what to do, as long as you know what’s good and moral.”

    That would be an understandable conclusion and completely incorrect. At the risk of being redundant (previously posted in this thread), if one believes as I do that Jefferson had it correct in the Declaration regarding self-evident truths, then it follows government is necessary and government does have “business” (interesting choice of words given your previous comment about government and business) consistent with the powers the People provided in the constitution.

    “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”.”

    Your ad hominem comments really weakens what is probably a valid, passionate assessment regarding many that will use the law (or lack of law) to infringe the rights of others. What’s ridiculous is needing a law to provide citizens a natural right of self-defense. Much of what passes for law today is a result of allowing government to infringe the rights of a certain class of citizens in favor of another class. Who the negatively affected class is depends largely on which political party is making the law. Frederic Bastiat captures this perfectly:

    “Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter — by peaceful or revolutionary means — into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

    Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws! Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.”

    My defense of natural rights is in opposition to any party/government that will use the backdrop of constitutional authority to redistribute property from one class to another; to enact social justice on one generation for the evils of another; and to secure their own political existence by subjugating the citizens to a system of education wholly inadequate for good citizenship.

    Before you believe that pigeon-holes me to one particular party, it does not. I’m registered Independent and don’t vote based on party. I vote in opposition to legal plunder.

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