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. Oliver: Interesting link, but a better explanation of your view of natural rights would have been an explanation of your view of natural rights, not someone else’s.

    If there’s anything to thank you for, it would be for confirming my suspicions.

  2. RTC,
    Don’t forget the elderly, infirmed, children, anyone of color, LGBT and oh yeah, women. Did we leave anyone out?

    That should about cover all the supposed groups us conservatives hate. This way I will have saved you from some inglorious rant later on.

    By the way your welcome, for my service. It was my honor! Or was that Mespo. I keep getting all of you confused.

  3. And I’ll bet the Scouts that accommodated your friend’s brother, Mike, don’t begrudge govt assistance to people with needs.

  4. Nick: Thanks for the kind words. Larry, as I call him (not his real name) did a lot to bring together the neighbors on our block, as we rallied around his family as best we could. He obviously needed assistance because of his condition, but so did his mother, who was as strong and sharp as anyone you’d ever want to meet; she just caught a tough break. She needed assistance and the State is in the best situation to provide it, in my opinion. I tell his story as way to give some perspective on where I’m coming from.

    Don’t get me wrong. I don’t need assistance, never have; your daughter doesn’t need assistance, hopefully never will; many, many people across the country will never and should never need it. However, there have always been and will always be people who for one reason or another are incapable of providing for themselves. Welfare does not and has never provided much in the way of luxuries for those who need it.

    I personally feel contempt for able-bodied young men and women who fail to do anything to improve their lot in life. But many of them aren’t receiving assistance, so where is the incentive to do nothing?

    Obviously,Oliver has a problem with more than welfare, he opposes Obamacare, possibly social security and unemployment as well. In my view, such a pinched, parsimonious view lacks compassion and is not moral.

  5. Oliver: Apparently your reading comprehension is little better than your grasp of natural rights. I said “grown as much as anyone”. Not sure where you get the most out of that, but it’s an indication of your interpretative skills.

    I don’t pretend to speak for anyone but myself, but I did note that Mike A. asked what you meant by natural rights. You have not come anywhere near answering that question.

    Simple question. Natural rights, what does it mean to you, J. Oliver.

  6. RTC, Thanks for talking about Larry. You have a good heart. I had a friend who had an older brother w/ Downs. Mike was in the upper realm of functionality. What fulfilled Mike’s life was Boy Scouts. The Scouts made adjustments for Mike and he was a Scout until he died @ age 48.

  7. RTC, Working hard was never a guarantee for success. Hell man, you know there are NO guarantees in life. But working hard is part of the Puritan work ethic that built this country. I think I know you well enough to say you get that you know the self esteem you get from working hard. That carries over to all aspects of your life. I was a Vista volunteer. I believe in helping people. But, there is a huge difference between helping and enabling. That is something that is often not understood by politicians to parents. Let’s be frank, there are a couple generations in the inner cities of this country that have little or no work ethic. There is a problem that many dare not speak about. Hispanics have quickly surpassed blacks in inner cities. There is resentment that is increasing annually. I see it in Chicago.

    You are correct about large corporations in many respects. My old man worked for Pratt & Whitney as a jet engine mechanic for 35 years. He had a good defined benefit pension. Those days are over. The reality is, you need to have a little pity party but then move on and adapt. We adapt or perish. There are incredible opportunities still out there for people w/ entrepreneurial drive. I see it in the Mexican immigrants here. The NYT reports today there has been a 36% decrease in the net worth of US families the past 10 years. That is unacceptable. My daughter graduated in 2010 w/ a degree in communications. She is working as a nanny. But, there are some things that never change. My parents also taught their 4 kids to find something they love and that love will propel them to success. In my case they were correct.

  8. RTC,
    Not only have you grown the most in this blog, that “feather in your cap” has apparently empowered you to speak for everyone here.

    Good luck with your cognitive dissonance.

  9. Oliver: Take the afternoon and see if you can come up with something that shows you know what you’re talking about. But nobody’s going to be holding their breath

  10. Oliver: Why don’t I just wait for you to quote some passages? See if you can at least make those relevant.

  11. It’s not jealousy that drives my views, not class envy, it’s concern for the less fortunate.

    I wrote earlier of having lost a number of people in my life last year. One of the people was a man I’ll call Larry. I grew up on the same block in Chicago as Larry did. Larry was born, the last of five children, with a severe case of Down’s Syndrome. The moment his father got a look at what he had to deal with, he left the delivery room, went home and packed up his things, and walked out on his family forever. This was back in the early sixties, before computers tracked everything, when moving from the North side of Chicago to the Southside was as good as leaving the country.

    Larry’s mom struggled to raise her kids by herself. All of the families on our block were close and the parents did what we could to help. That’s where DavidM would coo about how wonderful that is, but we had mortgages and mouth of our own to feed; there was only so much any of us could do and none of it was ever really enough and the truth is that it was embarrassing for Larry’s family. Even in subsequent years, as welfare programs became available, they lived in abject poverty. Eventually, as the other families began to grow up and move on, welfare was pretty much all they had. Larry’s mom did whatever kind of work she could get on the side, but it was always a problem finding someone to watch Larry. And here’s where DavidM would condemn the woman as a welfare cheat. However, the only reason they were able to make it was due to welfare.

    Bob Dole understood the govt assistance. His family received welfare during the Dust Bowl and were grateful for it. There has always been and always will be people less fortunate, less gifted, and saddled with conditions that prevent them from providing for themselves. There are times when people need assistance to help them through economic hardships. As the regulations that once steadied the economy have been undone, those economic hardships will become commonplace. Again.

    When Larry was about eleven or twelve, his mother was stricken by cancer. Her sole concern before she died was arranging for Larry’s care. As a devout catholic, she tried to get him into Misericordia but Larry was turned down. Her appeals went on for months as she neared death. She was in a state of panic at the thought of dieing before arrangements could be made for Larry and she refused to die until something could be done. Finally, my wife’s aunt, a force of nature, as well as a force in the Catholic Church, called Cardinal Bernadin and was able to get Larry accepted into Misericordia. Larry’s mother died within hours of hearing the news.

    Misericordia can’t take in every handicapped child. Not every family has access to anything similar. Private charity can only do so much with the resources it has. Plus, private charity will often only help those who capitulate to a particular belief system. Given the miniscule amount that government spends on helping the needy, it’s a moral imperative to help the least among us.

    Not everyone is as bad off as Larry was. And yes, there are those who cheat the system. Fraud is fraud, and no one is defending fraud; it’s wrong and should be prosecuted whenever and wherever it occurs. But the amount of cheating is nearly nonexistent – about three per cent. That’s not not enough to justify giving into the urges of sociopaths. Not when all the evidence points to a distribution of wealth to a class that for all intents and purposes are superseding the bonds of nationality.

  12. “For me, as a layman, to sway the opinion of a great legal scholar is a feather in my cap.” “I’ve grown as much as anybody on this site,”

    Congratulations RTC, you must be so proud. This would be a good time to recommend the book “Humility” by David Bobb.

  13. Schulte: Clinton and Bush did far more damage to the middle class than Obama. And the only thing regular here is your complete misunderstanding of an ad hominem.

    This was the strategy your contractors told you and Karen to use whenever someone pointed out the fallacy in your arguments. It’s interesting that you two started bleating ad hominem around the same time.

    The real irony is that whenever the topic of climate change comes up, your sole retort is to bleat about Dr. Mann, Dr. Mann as though that refutes anything concerning the global climate change crisis that’s taking place.

    And let’s go back and clear something up:

    1) I was never suspended for anything I ever said to you.

    2) I was able to convince Prof. Turley to rescind my suspension by arguing my case based on the merits. For me, as a layman, to sway the opinion of a great legal scholar is a feather in my cap.

    3) I’ve grown as much as anybody on this site, and I’ve treated you with more class and dignity than you deserve. I’ve conceded when someone has made a valid point, and gone back and examined my position on certain subjects. You remain locked into an inimical mindset which doesn’t allow you to examine viewpoints, only attack them with the intention of defending your preconceived, and bought and paid for notions.

    4) I’ve also changed my personal habits. Based on research I’ve seen, I’ve been logging off earlier and getting more sleep, and because sitting is the new smoking, I’ve been getting up and away from my computer more. But by all means, you make yourself comfortable.

  14. Oliver: I called you on your use of “you(r) gauzy terms”, and you said,”…your response (is not) new to me.”

    So in other words, you get a lot of people asking you what the hell you’re talking about. The way you’re using these patriotic, freedom-loving phrases is exactly the same kind of fuzzy sloganeering the Tea Baggers use to inveigle the nonthinking who flock to their kiosks.

    Bah-bah black sheep, ready to get fleeced?

  15. RTC – Obama and his administration have done more to gut the middle class than anyone before them. We are going to be like Mexico with only an upper class and a lower class.

  16. RTC – It is clear that you are jealous of those who have more than you do. And your ad hominem attacks are a regular as the sunrise.

  17. Oliver: All you’ve done is mouth platitudes: Truth, Justice, and The American Way. Which leads me to believe you don’t know what you’re talking about. All you’ve done is underline a series of phrases from great thinkers that strike you as meaningful; meaningful because they support your bias. The reason you can’t go into these concepts with any specificity is that you haven’t gone to the trouble of internalizing them.

    You consistently insist on engaging in the Appeal to Authority fallacy. Moreover, you appeal to long-gone authorities, as though they were the last word on democracy.

    If you want to be a parrot rather than a thinker, then please keep nattering away about natural rights and freedom. And we’ll understand why you can’t define your terms.

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

    And I’m okay with that RTC. Everything I’ve said here is not new (maybe to you it is) and neither is your response to it, new to me. What always amazes me about your ilk is your feigned ignorance of natural rights. It would be comical if it weren’t so pathetic that in your attempt to denounce the self-evident truth of them you can somehow make them simultaneously alienable and unalienable. And that is what makes your progressive regime workable, isn’t it?

    “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.”

    And that’s supposed to be a revelation? You can find a lot of legal scholars who’ll argue just the opposite. The only thing this proves is if you have an agenda; if you want to rig they system in your favor; then find a lawyer willing to “legalize” it.

  19. Envy has nothing to do it with it, Nick. It’s about realizing how the system has been rigged and who has rigged it. It’s no longer true that working hard is any guarantee of success or financial security.

    Vulture capitalists buy up perfectly sound companies and layoff productive workers in order to reap short term gains in the stock market and reward their cronies with CEO salaries and executive bonuses. They then rehire the same workers at reduced wages and no benefits.

    Millions of workers were thrown out of due to no fault of their own when the financial sector decided to pull the pin on the economy.

    Companies are shedding their pension obligations because after years of not adequately funding them, they’ve decided they can’t afford them, so they liquidate funds and leave workers who toiled their lives away under the impression they had something to retire on with nothing but Social Security. And the banksters are trying to get their hands on that too.

    The middle class is getting squeezed. The one thing I admired about Reagan was that he understood the principle of fundamental fairness that should be applied to the tax code. When the effort to roll back the capital gains tax mounted, he came out squarely against saying, That there was no reason a bus driver should pay higher taxes than a trustfund baby who did nothing more to earn a check than sit by the poolside

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