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.
Oh, that road trip to Utopia; give the kids iPads, DVD players and whatever else will distract them from even asking, “Are we there yet?”
Oh no! More “facts” from the white coats at PNHP.
The GAO just revealed they have been doing undercover work testing Obamacare. They sent out 12 undercover investigators w/ fake SS#’s DOB’s, etc. Only one was detected. The other 11 were enrolled, no problem, and got subsidies!!
http://www.pnhp.org/news/2014/july/two-falsehoods-on-single-payer
Two falsehoods on Single Payer.
Maybe whistling while he whittles.
I don’t see mespo singing in his rocking chair. I see him whittling like Jed Clampett.
John, We see what the government concept of “incentives” is in the VA. Offer incentives to bureaucrats and they lie, cheat and steal. They allow Veterans to die waiting for an appt. but cook the books so they get their 75k incentive. But, if that’s what “single payer” lemmings want, let them have it. Just let me keep what I earned.
Does anyone with the ability to reason “NOT” believe once this government gets it’s hands on a single-payer system that operating expenses will mean absolutely nothing?
Mespo:
You are pathologically uninformed. Medicare is already going bankrupt in the near term, without increasing aging of its existing population, without the increasing population of the 65+ Baby Boomer bolus, and without adding everyone else you’d like to add as well.
You are rocking back and forth and singing thinly to yourself in a graveyard of your own design.
“Not everything is based on lust for filthy lucre.”
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Not everything Dredd, unless you have an “unlimited” budget. Does anyone with the ability to reason believe once this government gets it’s hands on a single-payer system that operating expenses will mean absolutely nothing? This will be the mother of all monopolies since no other option will be available,
Quality healthcare? Well that will be the privilege of the privileged. Congratulations!
Tribe just said the ACA has an “unintentional gap” as he is accused of “coaching” the SCOTUS.
This is obviously defective legislation that must be RECALLED for necessary repairs. If GM was compelled to RECALL defective cars, the legislative branch should be compelled to RECALL defective legislation.
INTENT is not the purview of the judicial branch.
The INTENT of the entire judicial branch will become the question if this legislation is not sent back to the Congress for modification and clarification. Is it the intent of the judicial branch to rule through dictatorship? How many times has the judicial branch overturned the votes of the people and words of the legislative branch.
For the judicial branch to “legislate from the bench” because it cannot understand the wording of a law is criminal. The judicial branch shall return any and all incomprehensible legislation back for modification by the legislative branch.
It is as egregious for the judicial branch to usurp the power of the legislative branch, as it is for the executive branch to do so. Perhaps, Professor Turley believes the nation has reached another “tipping point.” How many “tips” before the fall?
P.S. If Tribe is an example of an intellect and a legal scholar, there never was any hope for the true American thesis, logic, rationality or objectivity. He can’t even coherently make it through a sentence before lunch. Seriously?
I apologize and I hope that was polite.
“The common good, altruism, not being a dick Cheney head.”
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That’s what I thought. Now would be an appropriate time to discuss the hazards of the progressive, public education system.
John Oliver,
What is the incentive for the administrators in a single-payer health system to provide high quality, low-cost healthcare?
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The common good, altruism, not being a dick Cheney head.
Not everything is based on lust for filthy lucre.
CH:
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.
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But the Medicare “filter” is taking substantially less than the private sector.Medicare operates cheaper and more efficiently than the private sector thus premiums go down not up. As for the resulting bureaucracy, it’s already in place and will be so as long as we have Medicare which polls show is overwhelmingly favored by the American people. If the administrative cost factor remains at 3% compared to the private sector’s 17% the savings will result in lower costs not higher ones.
John, Liberals do not understand the most BASIC concept of incentive. They don’t understand that the competition in private healthcare is exponentially better than the service provided by the VA. That’s why I’m hoping we get that choice, private or govt. I’ll ALWAYS go w/ incentive, for profit, competition, over bureaucrats. But, if liberals want a bureaucrat doc, God bless them. Let them have it.
The VA is government run healthcare. I say those who want single payer be allowed to receive medical care through the government, and those who want GOOD healthcare get to keep what they have EARNED AND WANT. Choice. “There is no freedom w/o choice.” I just brought my wife home from surgery. We have SUPERB medical care. We went to the hospital @ 6:30am, she’s home snoring on the sofa w/ pain meds in her body. We got home @ 12:45pm. The service was professional, no waiting. She was diagnosed and scheduled surgery in the span of 4 weeks. So, all you “SINGLE PAYER, SINGLE PAYER” songbirds. We expand VA and it is ALL YOURS!
What is the incentive for the administrators in a single-payer health system to provide high quality, low-cost healthcare?
Intent doesn’t really enter into it. It is not up to the court to be a mind reader. Their job is to interpret what the law actually says, and the language of the statute seems clear to me. If the statute doesn’t say what Congress intended, or if Congress changes its mind about the issue, it is up to Congress to fix it–not the Executive Branch.
The President could have, at any time, asked Congress to amend the law. But he was so afraid they would not give him what he wanted, or that they might make other changes that he didn’t approve of, that he chose to fundamentally change the law by calling it an “interpretation.”
Personally, I think everyone should agree to bypass any en banc hearings and go straight to the Supreme Court to get a ruling on this issue one way or the other. Whatever the ruling, the sooner this issue is resolved, the better for the country.
Can people just not add? In what alternate universe do people defend increasing premiums by double and deductibles by 1100% and reducing doctor choice by 75% and reducing formularies and making off-formulary purchases not count towards max caps?
I would laugh at the contortions people are going through to defend the indefensible if it wasn’t actually hurting my own family and many others I know. I would just love to see these supporters look a cancer patient in the eye and explain how it’s “better for her” that her Obamacare plan doesn’t cover the best cancer hospital anymore. Oh well. So sorry you won’t get to achieve remission and live to be a grandmother. But I just CARE more about people than you do, so you have to die so I can feel good about my vote.
Sure Chuck. It was private industries that caused this devastation. It was a complete coincidence that Obamacare even came out. My insurance company must have lied that my policy was non-ACA compliant. And those internal memos and the ACA Act itself must have been lying when it predicted that most private insurance holders would lose their policies.
It must be really freeing to be able to cause whatever carnage you want and then just blame someone else and walk away whistling.