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.
“Jay S
No one has brought up the issue of Congressional intent. I believe that when the ACA was passed, the intent was that all citizens in all states would be included. Doesn’t that count for anything?”
That only counts when there is ambiguity. Read the statute and you’ll see there’s no ambiguity.
Section 1311 creates the state exchanges
Section 1321 creates the federal exchange
Section 1401 creates the subsidies offered on exchanges created in section 1311.
It does not mention section 1321 exchanges anywhere in the part about subsidies, only section 1311.
“leejcaroll
The overturning of the ACA is what the red states who have decided party is more important then their people wanted, and want, to happen by refusing the Medicaid funds.”
Lee,
There were better ways to provide health care to the poor. Just because we’re against the method in Obamacare does not mean we’re against the idea.
I’d be curious if someone knowledgeable in constitutional law could compare the ability of federal agencies to make regulations with the force of law versus the line-item veto power which failed to pass muster. It seems to me that both involve Congress delegating legislative power to the executive.
Karen I never called you a liar.”Because you say your premiums went up that is not the overall case.” is the exact quote form my post Repeating the lies of the right doesn’t make your case. It also doesn’t necessarily make you a liar unless you knowingly parrot what you know are lies.
My doctor had a sign in his office that the ACA might cause him to stop taking medicare patients. That was not the case, he continues to take them and removed the sign. Because you have a copy of a sign from your doctor’s means one thing, that is the position your doctor has taken Does he have legitimate citations for the information that he has on the sign?
You seem to think that anecdote is proof of a system being flawed because you personally don’t like the system. Anecdote is your experience. Period.
JO
Where is reason?
Wasn’t the American concept a representative republic through the restricted vote granted by meeting reasonable criteria.
Does the military self-promote qualified leadership without the vote of every private?
Do all the employees of Microsoft vote for the CEO?
Do the inmates vote at the asylum?
The inmates have taken over the asylum.
Sally Jarvis
“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.”
Is “interpret” the correct word? It was my impression that the legislative branch wrote the law and the judicial determined if
ACTIONS COMPORT WITH LAW AS WRITTEN.
The legislative tells us what to do.
The judicial finds out if we’re doing what the legislative told us to do.
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The executive and judicial branches do not tell us what to do.
The executive and judicial branches need a spanking.
I hope that was polite.
Full government healthcare for anonymous. He gets VA benefits on the dole. Now, leave us producers alone!
So Karen, “You need to get over it.” Some anonymous person needs your tax money.
“From another spoiled, pampered American who needs to grow up and get over it.”
Now there is some “learned” commentary. What’s next, wait til your father gets home?
Karen, When someone calls you “spoiled,” odds are 10-1 they’re a taker, not a producer. Because you are expected to produce and not have the benefits of your hard work. Others are lazy..err less fortunate. There are indeed less fortunate, but they don’t lecture about “spoiled” producers. That’s mostly the takers in our culture.
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. -Karen S
From another spoiled, pampered American who needs to grow up and get over it.
CH,
You know whereof you speak.
As China and Russia helped void the petrodollar with their gas deal, the BRICS recently circumvented the IMF and World Bank which will devolve negatively to American if not Western finance/economy entirely.
Argentina is on the verge of default, again.
$20 Trillion is unpayable U.S. debt by 2016.
Detroit, San Bernardino and Stockton are precursors.
Do Medicare and the rest of the redistributed welfare state stand a chance of survival?
Who will remain solvent to pay for the largess of redistribution?
IMO of course.
Oh wait, did you say Mother Nature? Damn, now we need a Phd. from the EPA as well.
John Oliver, exactly, their reason and logic exceed yours.
John,
I’d better wait for a Phd. from the NEA to weigh in on your obviously unqualified opinion.
JO,
CORRECTION *********************
There is no such thing as a “public education system.”
That is simply an additional layer of complexity of the welfare state for purposes of obfuscation and a tool for redistribution of wealth to artificially “poor” people and arrogant, lazy, striking union teachers. Public school/college exists to compel the taxpayer to pay the tuition for families that chose not to pay for the education of their children, and to redistribute absurd, above-market wages and benefit packages to union teachers.
Every person is capable of obtaining gainful employment and paying for what he desires as family budgets and affordability vary widely, understandably so. People determine the number of children they have and are responsible for them. Eliminating the financial burden of education removes incentives related to behavior regarding birth control. The education subsidy is unfair and unequal as families with more children derive a larger benefit from “public school/college” than families with fewer. People pay hundreds of thousands of dollars for a house and scores of thousands for a car – they can pay for their own education.
Waste and inefficiency are enormous in “public school/college” with the first example being unnecessary administrators making $250K or $500K+, and it only gets worse going down from there.
The education industry and all industries were intended to be private as market rationality and efficiencies exist there, the first of which is competition. Education is not general welfare, infrastructure or a utility. Unlike water or electricity, consumption of education is vastly different by person based on interests, capacity, motivation, etc. Private schools must vary the “menu” to address those differences.
The elimination of regulation and taxation for redistribution as part of the overall privatization of the education industry will open opportunities for business creation and employment.
People will spend their own money wisely and efficiently. Money must be allowed to go where it is attracted. That is nature.
It is not wise to fool mother nature.
I don’t claim any enhanced credibility Annie. The use of reason, logic and common sense doesn’t require advanced degrees. I’ve asked reasonable questions that require one acknowledge human nature is predictable; especially with regards to those entrusted to public service.
So John, why should your “facts” hold more weight that the docs’ facts? Sorry, but you don’t exhibit some ‘enhanced’ credibility of any sort. I believe their facts far more than yours .
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
or
Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001)
Which one did the most damage?