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.
betty – abandoning the typical American diet can do wonders for overall health. I wish we took more of a whole body approach to health care in this country – addressing everything from nutrition, exercise, stress, and sleep, as well as the symptoms of illness.
Can anyone find my post?
I never was very passionate about politics before Obamacare. I was a fiscal conservative for a while, and would gripe at government waste. But my attitude about political parties was “you like peas; I like carrots.” It wasn’t until Obamacare cost my family many thousands of dollars more a year, and took away my doctors, that I became frustrated and outraged. The president has earned a rebuke and a backlash for hitting middle class families so hard in a recession. I do not believe the economy is recovered yet. How can it be with some demographics having 26% unemployment? What kind of madman hits the middle class with thousands of dollars in higher health insurance costs at a time like this? Shameful.
Lee – sorry. I missed part of the thread.
Squeeky – the VA is single payer. Services are free to the patients – they do not have to pay anything. Only the government pays. And they are restricted to the VA network. Which is why they wait 9 months for care.
leej and I disagree on many topics. We do so w/ respect. You see, she and I share the bond of chronic pain. Hers is much worse than mine. I always keep that in mind every time I exchange w/ leej, be it disagreements or just chats about something lighthearted like food. Additionally, I have gotten to know leej via email. She is a wonderful person. When you’re an independent like myself, you have friends from all political spheres. I’m right of center, leej has her back against the left field wall. You can see our political differences in this thread. It’s just politics!! leej is a wonderful person who travels this journey of life in pain. She does not use it as a crutch, it is merely her reality. She makes this journey w/ dignity and courage. All need to respect that journey she travels bravely and thank God they don’t have that burden.
Lee:
In my mind there are 2 groups of poor:
Group 1) Those who have had the piano of fate fall on their heads. They’ve aged out of foster care and are struggling. They’re disabled, seniors, ill. They’ve lost a spouse. Lost a job. Through no fault of their own, they are on hard times and need our help to make it through.
Group 2) This group is the instrument of their own demise. They join gangs or engage in criminal activity, which ruins their future. They succumb to peer pressure and start families as teenagers or young adults with no stable relationship. They do drugs. They float from one low paying job to another, never digging in and trying. They drop out of high school. Or they don’t go to college or any trade school and just float by. Most of us know some people who fit in this category. You know the type – 26 year old man living in his parents’ basement, playing video games and refusing to get a job, demanding his retired parents pay his car payment.
Reasonable people object to that group 2. We all tell those parents – make your son get a job already! Stop enabling him!
But that is NOT a criticism in any way of Group 1. If you are in Group 1, you should realize this criticism does not apply to you in any way. I see those in Group 2 siphoning away support funds that were intended for those in Group 1. And it makes me mad. Because there are truly needy people who are going without while that money is wasted.
FWIW, single payer and gov ‘t healthcare are not the same thing. I was in a facility that had several different kinds of payers. The medicare people got to stay for 100 days and then had to make other arrangements, which for the poor was Medicaid. Some rich people paid their own $4000 plus per month, while others had private insurance. But, we all got treated the same and ate the same food. I did feel sorry for the medicaid people because they only got $38 a month to spend on fun stuff and certain necessities.
My understanding of single payer is that most would be on a medicare like system but the providers would still be their own bosses or work for various companies. They can obviously make a good living off what the gov’t pays because most patients were medicare/ medicaid and still the staff all seemed to have nice cars and took vacays.
Squeeky Fromm
Girl Reporter
Karen, again I was not referring to you I was responding specifically to John and that was to whom the sentence was directed. obviously he had not fallen into any of the categories , given his post.
Lee:
“In the country where I live, we don’t say you don’t have money then you don’t deserve health care.” Right. Hence the need for a humane solution to health care access for the poor. Medical and Medicaid are for the poor. They both have a lot of problems and are in need of reform. Unfortunately, Obamacare slashes them further. I’ve taken care of someone who passed away on Medicaid. It was shameful what it wouldn’t pay for, and that was years before Obamacare hit.
If your house has termites, you don’t burn it down and declare, “Well, I had to do SOMETHING!”
“I guess you are very lucky because you have never fallen into any of those categories.” Actually, Lee, I have been poor and struggling. I rarely eat Mac ‘N Cheese and NEVER eat Ramin because I pretty much filled my quota of surviving off those. I’ve been in debt. I’ve had to put groceries back in the checkout line. I’ve had to figure out how I’m going to pay the light bill. I worked long hours when I was in college. I never took public assistance. I just kept working on my goals.
It’s sad when people just assume that fiscal conservatives have never experienced struggle or want. Or that a call for reform means we don’t care about the poor. I’m in the middle class now, and the biggest threat to my financial security now is the economy and Obamacare.
Me: “I disagree with 20 free contraceptives required on all plans. Middle class and rich women should have a copay for contraceptives, just like any other medication, to help bring premiums down for all.”
Liberals: “You must not care about the poor!”
I do write a column 2 -3 times a month I don’t work doing that because just answering this and you can see I don’t write a lot, It is rare when I reply more then once or twice. but your reply angered me, truly because doing so causes severe pain. To answer you requiresme to take narcotic medication in order to write even these few responses. (And I will not defend myselfanymore to you. You think apparently that being poor or in need is a choice formany people it is not
Help! Lost a post!
“Instances of fraud” is not 11 out of 12 frauds going undetected, leej. That is runaway, rampant, out of control, fraud. Feinstein blasted Obama today on his being AWOL on Putin. It was during an appearance on MSNBC. Steny Hoyer did the same, just a little more kiss assy. A Congressman in Virginia recently skipped an appearance where he was expected to appear w/ Obama. Senator Udall in Colorado shipped his own fundraiser where Obama flew to help out! Off the record Dems are angry w/ Obama. They call him disengaged. They say Valerie Jarrett and Michelle have put him in a “mommy cocoon” making it impossible for people to have access and give him the slap upside the head he has needed so desperately for several years. leej, the Fall elections will speak loudly. Will you hear it then. The President has many enablers. That is always a recipe for failure. Remember, I voted for him in 2008. I was taught to “NEVER make the same mistake twice.
Two words: DISABILITY INSURANCE.
Third word: CHARITY
Idea: Why don’t you get a job writing? You’re prolific.
Why is Romneycare different than Obamacare?
1. Mitt Romney did it on a state level, rather than a federal level. Each state has different levels of immigration, unemployment, and level of uninsured. What works for Mass might not work for CA.
2. The reason was purely conservative: there were too many who COULD afford health insurance who did not have it, and let the taxpayer pick up the tab when they were injured or ill. It was designed to stop the free ride for those who could afford it.
3. Mitt enlisted the help of the conservative organization The Heritage Foundation to draft it. He got unanimous support from Republicans, Democrats, and Libertarians. There were no back door deals. No “we have to pass it to know what’s in it.” It was a conservative idea crafted with the help of all parties.
4. He didn’t add a bunch of “free benefits” that drives the cost of premiums and deductibles up for everyone. Because nothing is free.
5. The level of uninsured was lower in Massachusetts than it was nationally. So they had less drain on the system.
6. Mitt did not fundamentally change health care – he did not mandate free stuff, reduce choice, nationalize health insurance, or require 20 forms of “free” birth control. All he did was address the uninsured – subsidizing the poor while requiring those who could afford it to do so or pay out of pocket for health care They were not taxed for not buying it. They just were not going to get free health care anymore.
I hope this explains the difference between a conservative approach, which basically ended entitlements for those who could afford it, and Liberal Obamacare, which was crafted behind closed doors and sold on lies. Its premise is “lots of free stuff” which makes it completely unaffordable. And it reduced choice.
The conservative approach was tailored for a particular state, a humane solution to the poor and uninsured, and reduced the entitlements for those who could really afford it.
Karen, I retrieved your comment at 6:36.
Throw this in for good measure…………5 Surprising Things Not Covered by Health Insurance (June 2014)
1. Your health insurance might not pay for healthcare costs you racked up doing something illegal. Known as an illegal-act exclusion, if your health insurance policy has one,
it means you won’t be covered for healthcare costs caused by your participation in an illegal act.
2. Getting shots before your exotic foreign vacation? Your health insurance might not pay for your travel vaccinations.
3. Do you think getting prior authorization from your health insurance company for an expensive MRI, CT scan, or procedure, means the insurance company has agreed to foot the bill? Think again.
4. Incorrect Hospital Admission Status: Observation Status vs. Inpatient Status. Your health insurance might not pay for your hospital stay if you were admitted as an inpatient but your
insurance company thinks you should have been in observation status.
5. Think your health insurance or Medicare will pay for nursing home care when you’re unable to care for yourself? Think again.
When is the decision on this defective ACA law expected?
I can see the headline now –
THE POOR GET MORE
JUDICIAL BRANCH EXECUTES COUP DE ETAT IN AMERICA
Film at 11.
P.S. This will be an open invitation to illegal aliens. They’re always looking for more. They’re good communists. They take as much of other people’s money as they can. Why not? They’re the “poor,” they deserve wealth. What???
( http://www.aol.com/article/2014/07/23/agents-get-subsidized-obamacare-using-fake-ids/20935691/?ncid=webmail6 )
I was looking for the article. I had seen it earlier
Nonetheless, GAO audits and investigations chief Seto Bagdoyan told the House Ways and Means Committee that the agency has not drawn any sweeping conclusions from what he called its “preliminary” findings. A full assessment will take several months.
In the real world, it may be difficult for fraud artists to profit from the nation’s newest social program, since government health care subsidies are paid directly to insurance companies.
so no conclusions drawn. I daresay any program, public orprivate will have instances of fraud. It is not an issue of a small population being found but is this more widespread
The right can keep saying the president has failed, the construct hoped for a lie repeated often enough becomes the truth. I don’t see dems blasting Obama or running away from him wholesale. I see dems, unlike repubs, not falling into line one way or the other but speaking up and out for or gainst, or in the middle based on their opinions and feelings rather then party line over all else.
I see there are no takers for govt. healthcare. LOL! And, no comments about 11 of 12 GAO undercover agents getting Obamacare and SUBSIDIES using fake credentials, including SS#’s and citizenship papers. For you baseball fans, that means Obamacare batted .0833 in uncovering fraud. Damn, all they needed to do was run the SS#, they’re the freakin’ govt!!!.Good enough for govt. work.
This President has failed. Obamacare has failed. Dems are know blasting Obama and running from him. Jimmy Carter is smiling.