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.
Before you snark you need to consider what you write. In fact I am disabled and had to be on assistance while I waited to be able to get disability.
Who pays for it? When I did not realize I had private insurance (turned out my father had held it on me but had not told me)
You all paid for it, the people of my state. Had I not had private insurance the costs of my 12 brain surgeries would have been borne by the taxpayer. In the country where I live, we don’t say you don’t have money then you don’t deserve health care.And btw it costs all of more when we deny coverage. The poor wait until they are sicker to seek care, you cannot be turned away from an ER, so they cost all of us more because they require more care and treatment. Those with illnesses that such as TB who don’t get treated are a danger to us all since without treatment they can ninfect hordes of folk.
No the poor are often poor because they have no skills, because they are children, because they are disabled, because they are seniors. I guess you are very lucky because you have never fallen into any of those categories.
I never said everything should be free but when you have no compassion or ability to understand that not everyone is “able” that as a society we have an obligation to those in need, you will then slam anyone who says we need to take care of others (and for people like yourself) addendum: because it is ultimately selfish to do so so the streets are not clogged with homeless, hungery/ill costing us all more at the end of the day.
(Oh by the way I grew up middle upper class and am a college graduate. I never expected that in the span of a second, literally, I would go from being able to being unable. The needy could be any one of us, including…you))
leejcaroll
“The D.C. court’s ruling, if it became settled law, would deprive as many as 4.7 million Americans of the assistance that makes their insurance affordable.”
Waaaaaaaaa!!!! What did humans do for the previous 200,000 years?
If they can’t afford a policy, it means a policy is not economically viable. In your political philosophy, is there such a thing as “free stuff?” Who pays for it? Oops. You don’t care about who pays, huh? What are you on welfare, because money, apparently, comes inordinately easily to you. Are you a bank robber? No, they work hard robbing a bank successfully, huh. You must just get free money so you don’t care about giving other people’s money away, right? You have a right to other people’s money; just order it up. Let other people work their a—- off for a lifetime so it can be confiscated for use by parasites. Have you ever read Witness by Whittaker Chambers?
I don’t get it. You act as if America was established to give out free money to the sick, lame and lazy.
If that’s the case, why didn’t the Constitution simply say “take all the money from the people who work and give to the people who don’t work whenever they demand it?” Or give all the money to striking teachers and give “comparable pay” to the rest of the governmental workers. They’re all on assistance, huh?
Medicaid for the “poor?” Why don’t the f—— “poor” go buy their own coverage?
Ass istance. Here’s some assistance, go get an f—— job.
Oh, I get it. Bottom line; the poor don’t have to get a job because they have the vote. That’s brilliant. Who thought of that? Was it Alexis de Tocqueville?
“The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”
― Alexis de Tocqueville
Can everything, including Medicare, be free in perpetuity? $20 Trillion in debt and cities, retirement funds and government programs facing insolvency and you want to pile on more and more free stuff for the takers from the makers?
“Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.”
Seriously? What planet are you from that everything in life is free, “womb to the tomb?”
The football games you go to, do they give trophies to the losers?
Charity is honorable.
Creation of wealth is imperative.
It’s not complicated Annie. Whatever you believe provided you with unalienable rights.
Annie:
Why your creator, of course —The Great God Chemotroph.
Gee, everyone’s fighting over medical care that is grossly over-priced. There is no health care in this country.
Someone I know was on a very bad (but typical) diet. He had a heart attack and need multiple bypass surgery. He had no insurance. The prospective bill: was tens of thousands of dollars. He went to Thailand for the surgery. They treated him extremely well. The cost, including airfare, was less than 1/10 the projected cost of here. They also gave him a new regimen for health. He has lost substantial weight and feels great.
“Trust in our Creator”. Whose ‘creator’?
CH:
“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.”
********************************
Well let’s just say one of us is uniformed:
“The annual report of the Social Security and Medicare trustees concluded that the Hospital Insurance Trust Fund, which pays Medicare’s hospital costs, will become insolvent in 2026, instead of the 2024 insolvency projected last year.”
Wow we only have 12 years to get this straight. How does one possibly handle too little money? No humans have ever faced that challenge before. What will we do Chicken Little?
John,
Reason I believe, went the way of teaching basic logic and critical-thinking skills. Looking for a “qualified” opinion is the depth of reason in today’s culture.
What’s even more fascinating is how childlike faith has evolved in today’s culture to be a reflection of our trust in government and not our Creator.
Oddyseus. Romney was a repub governor. It was (is) his plan, his name, The issue is not Romneycare was not federal. It is the structure of the ACA which was based on Romneycare
The D.C. court’s ruling, if it became settled law, would deprive as many as 4.7 million Americans of the assistance that makes their insurance affordable.
A large proportion of these Americans live in the same mostly Southern and Republican-controlled states that have also refused to expand Medicaid to provide health coverage to the poorest of their poor. Residents of those same states also have, on average, the poorest health profiles and poorest access to health insurance in the country. Those are also the states where the increase in costs imposed on residents by the ruling would be the sharpest. (See the accompanying map for the details.)
http://www.latimes.com/business/hiltzik/la-fi-mh-damage-reports-20140723-column.html#page=1 The latest Obamacare rulings: A roundup of the damage reports
The red states governors do not care about their people, party does trump their health and lives.
http://www.slate.com/articles/news_and_politics/politics/2014/07/the_halbig_decision_is_dangerous_for_republicans_obamacare_is_more_popular.html
Why the Halbig Decision Is Nothing for Republicans to Celebrate
http://www.pnhp.org/news/2014/june/pnhp-backgrounder-on-the-va-–-june-2014
Background on the VA. Here, learn something.
http://www.pnhp.org/the-va-another-reason-for-single-payer
The VA, another reason for Single Payer.
http://healthcare.dmagazine.com/2014/07/21/is-insurance-bureaucracy-lengthening-physician-workdays/
The bureaucracy of health insurance companies.
“Nick Spinelli
No takers for the single payer VA healthcare system??”
Of course not. The little trolls scurry away like cockroaches when the truth is brought out.
“leejcaroll
Karen Republicans did do it. It is called Romneycare and they liked it until it became known as “Obamacare””
Wrong. Romneycare was passed by the Massachusetts legislature. I doubt Republicans had anything to do with that.
One guy at the Heritage foundation wrote a paper describing something like Obamacare. No Republican ever proposed that as legislation on the federal level.
“Annie
Single Payer is the answer.”
How would you like a bureaucrat deciding how much you get paid for the work you do? Well, doctors don’t want that either.
The reason your premiums rose and offered less was because the government forced insurers, through regulation, to cover things insurance should not cover, like wellness exams and office visits when you have a sniffle.
This set the insurance companies up as a third party payer. When someone else is paying, you don’t care about the price. Doctors upped their fees since it would not hurt their business.
The best solution is to get government out of the mix and return insurance companies to insuring against the unexpected.
A monopsony controls cost because the single payer sets the price. It does nothing to actually control the cost. That is why those systems are marked by poor service and long waits.
Return health care to a truly free market and you’ll see those costs plummet.
No takers for the single payer VA healthcare system??
leej, This is simply not a red/blue state issue. 36 states refused to set up Obamacare exchanges. Two more states[38] and you have enough to ratify a Constitutional amendment.
Karen Republicans did do it. It is called Romneycare and they liked it until it became known as “Obamacare”
BTW Karen I keep my insurance because it is a grandfathered plan for over 10 + years and I do not want to change to a plan where the temrs can be changed. Were I to get insurance under the ACA I could get a plan, same benefits for 1/5th of what I now pay monthly. 250$ vs 50$ That is my anecdote but I don’t then say so everyone, or almost everyone will see the exact same numbers that I did.
(In addition until the ACA when I looked into other plans I was turned down because I had a ‘pre existing condition”. They can’t deny me anymore as a result. Terrible thing to be able to get insurance even if you have a medical condition.