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.
Do not defend the indefensible.
If Republicans did this to millions of people, there would be riots in the street about the “war on women,” and the “war on the middle class”, and the “war on small family businesses.”
Where are your morals now?
No Karen, you have it bass ackward. That’s what comes of private industries meddling in government services because inexpensive government services cost them money. It’s why FedEx and UPS would really like to see the USPS go away. It’s why CCA would like to see all publicly operated prisons close. It’s why the private psychiatric hospital and mental health industry wanted to close State Hospitals.
Single payer could do it cheaper. That is one reason the entire US health care system is second rate when compared with others systems around the world.
The ACA may be better than what we have had or not, but its not what we should be upset about Obama for. Impeach BO for the NDA Act, not for an attempt to put in a health care system.
But wait. If I changed health insurance plans, ever in my lifetime, I might have had to change doctors.
Does that compare with 75% OF DOCTORS DO NOT ACCEPT OBAMACARE POLICIES? I liked my plan, with its extensive network of doctors spanning the entire state. I was promised I could keep my plan. That was a lie. I didn’t have to get a new doctor here and there because I CHOSE to change insurance policies. My policy was taken away from me, and EVERY SINGLE DOCTOR I had does not accept it. Every qualified doctor I was referred to does not accept it. Every time I go to the doctor, and mention my Obamacare policy, nurses, doctors, and patients pour into the waiting room where we have a heated discussion about which level of hell Obamacare belongs in.
Lee:
“lies about the ACA”
You called me a liar. That is untrue. I have evidence of the increase in my premiums and deductibles, and I have a copy of one of the signs at my doctors office that 75% of doctors cannot afford to accept Obamacare.
When people are ill equipped to debate the facts, they revert to foolish ad hominem attacks.
Obamacare is devastating to the unsubsidized middle class on the individual insurance market. And just wait until this hits the employer market.
Own it. Deal with it. Face the facts of what Liberals have done to the American people.
Mespo:
Once you “extend” Medicare – originally a small group funded by the whole group – into any significant size you’re simply taking money out of your right pocket and putting it back into into your left while passing it through a health care dollar removing filter. Add in the cost inflation simply from doing so – does no one here have a clue what 3rd party funding price inflation has done by now to higher education in addition to medicine? – and you’ve simply medicalized your GDP.
I guess it really hasn’t sunk in yet that, except for a few outliers and rebels practicing concierge medicine, Obama and the Democrats have effectively purchased the health care industry and its financing arm as a dependent political constituency with the passage of Obamacare.
Congratulations, you’ve just added a new federal medical industrial complex to whatever federal military industrial complex is still going strong from Eisenhower’s day.
Lee:
“Karen, The president did not lie about keeping your own doctor.”
“If you like your health plan, you can keep your health plan. If you like your doctor, you can keep your doctor.”
Well, that wasn’t true. That was a deliberate lie, because he knew at the time it wasn’t true. Obamcare policies pay doctors around $24 for a doctor visit, at least here in CA. So 75% of doctors cannot afford to accept those policies (and I have to wonder about the quality of the doctors who DO.) And to reign in those premiums that spiraled out of control with the addition of all that “free stuff”, insurance companies also restricted networks. Thanks to Obamacare, the hated HMO model is returning. And I loved my health plan, but it was taken away from me because it was not ACA compliant. My husband’s plan was grandfathered in, but the premiums are skyrocketing. They are making those plans unaffordable to get everyone on ACA.
I liked my plan. I lost my plan BECAUSE it was non-ACA-compliant. I loved my doctors. I lost my doctors because they did not accept the pitiful pay of an Obamacare plan. Hence, the facts are that Obamacare caused me to lose my plan, lose my doctors, and increased my premiums and deductibles MORE than they EVER DID before. I pay more and get less.
This is what ALWAYS comes of government meddling in private industry.
“Physicians for a National Health Plan” (PNHP) supports “single-payer”. They have Doctor’s coats and everything!
CH:
All you need to do is extend Medicare eligibility to persons aged 45 and above — the highest risk group. Others could purchase private health insurance or get it through their insurers until single payer is phased in. Medicare operates on a 3% overhead rate. It’s not an insurmountable problem unless you want it to be.
I’m all for the proles getting the single payer medicine they want and deserve. All that will do is drive quality medicine either into a second, upper tier or onto the black market. Either way, there’ll be more for me and my family.
Either way you’ll have a capitalist delivery system: a state crony capitalist single payer delivery system for the proles, where just about every bit of information reported out of it has been falsified to protect the incomes of those inside doing the reporting, and a free market capitalist delivery system floating on top of it for those who won’t settle.
Take away malpractice litigation and iatrogenic deaths will simply become accepted as a statistical norm, like 19th Century infant mortality. Replace multiple competing private insurance companies with only one which you can never leave and, really, you deserve what you get.
Jay, a couple of times were in the 80’s and 90’s when my employer changed from one insurance company to another. Another time was when my clinic dropped Prime Care entirely. I live in SE Wisconsin and my choice in doctors isn’t small at all actually.
Karen S
Our procurement system ensures we over pay while they under deliver. Just like the Obamacare federal website.
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Its the same problem with military, political appointee and generals are the same. Meddling in things they don’t understand to introduce mission creep and new requirements that weren’t part of the original design/plan.
Let the professional procurement and project managers run things and you’ll have a much better chance of success. Keep the politicals out of it. And don’t forget projects fail in the private sector too.
Annie-
I’ve had the same doctor for decades, being paid for by two different insurance companies (before retirement) and now a Medicare Advantage plan after retirement. Where do you live such that you have so little choice in doctors?
Karen S. I am hearing your feelings about Obamacare loud and clear. Do you have any thoughts about the issues JT raises in this column?
but the right never bothers to mention the truth of the doctors charge they make, that it is again the plan you choose because that might take the air out of one of their lies about the ACA
Unbridled, predatory capitalism resulting in 25,000 deaths* a year. -mespo
Yes.
* And I’m guessing that 25,000 is a low number.
Leej, so true. When my employer changed insurance plans, I had to change doctors several times over the years.
http://vtdigger.org/2013/11/01/russ-canadian-health-care-facts-fears/
Canadian Health Care: Facts, not fears.
http://econproph.com/2014/03/31/doctors-vote-with-their-feet-and-move-to-canada/
Doctors vote with their feet and move to Canada.
Oncologists can be Liberals, too. I care about the facts.