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.
I’ll try it in smaller posts.
“That would be the Constitution. In nature there are no “unalienable rights.”
Mespo, that’s an understandable belief and quite incorrect. The second paragraph in the Declaration of Independence is where you’ll find the correct answer:
Please assist in recovering a post sent about 2 minutes ago. It was a response to Mespo.
“That would be the Constitution. In nature there are no “unalienable rights.”
Mespo, that’s an understandable belief and quite incorrect. The second paragraph in the Declaration of Independence is where you’ll find the correct answer:
We hold these truths to be self-evident,
1.) that all men are created equal,
2) that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—
3) That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —
4) That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The 1st and 2nd truths are a reflection of who we are as human beings merely by our existence in the state of nature or within the social contract. The 3rd truth identifies the fundamental purpose for government. The constitution is the result of the 3rd truth and with great thanks to the anti-federalists, we get the first ten amendments. Those amendments Do Not Give us rights; they identify in more detail what the 2nd truth represents. The 4th truth makes protection of the 2nd amendment significantly more important. If government is ever the last entity standing with the ability to defend itself then we as citizens will have effectively eliminated our ability to execute the 4th truth.
John Oliver, I retrieved your comment at 11:12.
Squeeky Fromm, Girl Reporter
The VA is single payer and single provider. Most of the employees are gov ‘t employees. But, they have the ability to send patients out. They are a great example of why we should fear gov ‘t health care aka “single provider”
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why, because of the rush to ramp up for war there was no rush to ramp up for the corresponding increase in casualties.
the v a can not increase their own budget.
btw when was the last time you were at the v a?
None of this matters one bit, because the law is what Obama says it is.
Period.
Right,Professor?
Darren, Thanks for checking. Evidently they went through. I see the first at 7:29 and the second at 7:36. Go figure!
Squeeky, so what do you think about disabled folks getting Medicare?
Leej, what is that saying, there but for the grace of God go I. I love how some folks invoke God, yet are so unchristian. Yes all those disabled folks should get off their butts and find a sedentary job. They are SO plentiful.
@karens
The VA is single payer and single provider. Most of the employees are gov ‘t employees. But, they have the ability to send patients out. They are a great example of why we should fear gov ‘t health care aka “single provider”
But medicare is more of a single payer and people there can go to any provider who takes medicare.
Squeeky Fromm
Girl Reporter
Darren, I just tried my original post again. It does not go through at all as far as I can see. My two comments to RTC went through. This one was right before and right after those two comments.
Jill, I checked all the filters but did not unfortunately see anything in there.
Darren,
I’m trying this again: Here’s what it means to have courts in deference to the executive and his agencies: “The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.
The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.”
RTC, What do you mean when you write: “Maybe that’s his real agenda.”? Whose real agenda?
Darren, I can’t even get my comment to go through. Would you please see if it’s in any filter. Thanks!
Jill:
I don’t know anything about the details in these decisions, but I do think it’s wrong for Obama to be making these changes in law unilaterally.
One good thing that might come of his pushing executive power to the limits is that it may finally spur the Congress to assert it power in a meaningful, and lasting, way. Maybe that’s his real agenda
Here’s what it means to have courts in deference to the executive and his agencies: “The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.
The “March 2013 Watchlisting Guidance,” a 166-page document issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place “entire categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.” It also allows for dead people to be watchlisted.”
From Jeremy Scahill at the Intercept
Karen sed: “the VA is single payer. Services are free to the patients – they do not have to pay anything”
Actually Karen, many of them had to pay with their limbs or their senses, like sight. All of them had to risk their lives.
Typical conservative: deceive a nation into going to war, then begrudge the wounded healthcare when they come back from the fight. Looks like somebody got their degree from the Dick Cheney School of Government
John Oliver:
That would be the Constitution. In nature there are no “unalienable rights.”
Karen: In order to have an honest discussion, you must first be honest. The VA is overwhelmed by the number of traumatically injured vets who survived as a result of improved battlefield medical care. Those vets were sent into battle as a result of the biggest lie ever told while at the same time the Bush administration was hacking the VA’s budget to help pay for tax cuts needed to save the wealthy from oblivion (which you apparently don’t think went far enough.)
Health insurance under capitalism resulted in people having their policies terminated once they became sick in the guise of preexisting conditions after paying high premiums for years. Either that or they were relegated to ineffective yet cost- efficient treatments rather than newer, more expensive treatments that were deemed “experimental”.
Or the best is when insurance companies simply denied coverage for conditions clearly covered by policies, and then dragged out the case in court until the the policy holder died because the cost to litigate was cheaper than paying for treatment.
I recall a case in Texas where the father of a 14 year old cancer patient took his case all the way to the Texas Supreme Court. The father, a man named Carr, had purchased health insurance for his family; his son became seriously ill and needed treatment; the insurance co. claimed the boy wasn’t covered under the father’s policy. The father had money and took the company to court. The judge took a look at the policy and found that it plainly covered the man’s son. The company appealed. The appellate judge shrugged apologetically and said Sorry, but it appears that the policy plainly covers the boy. The company appealed to the Texas Supreme Court, all the while the boy is becoming progressively ill. The justices were not unsympathetic – to the insurance company. Faced with an uncomfortable choice of either ignoring the language in the policy or requiring the company to pay for the boys treatment, they hit upon the idea of deciding in favor of the father, but sitting on the decision for a protracted length of time. The opinion was given Patricia Mullen, a true sociopath, who held the opinion for over a year before handing it down. The insurance company said it wouldn’t pay for treatment until it had an opportunity to study it. mullen handed down the court’s decision something like two weeks after the kid died. That’s healthcare in a capitalistic society.
Healthcare in Canada and Europe isn’t in trouble, just like it’s not in trouble in Japan.
Like I say, if you want to have an honest discussion, first you need to be honest. You fail that first simple test.
Like Nick pointed out,
Guess where the Commander and Chief is today, July 23? Connect the dots!
President Barack Obama is in the SF Bay Area for another fundraising visit.
Some are questioning the timing of the president’s trip and the message it might be sending in light of the current international crisis and problems at home.
Other dignitaries expected at the noon event, which had tickets ranging from $10,000 to $32,400 per couple, include House Democratic Leader Nancy Pelosi and Rep. Anna Eshoo, D-Palo Alto.
Hillary Clinton is also in the Bay Area Wednesday to help launch a reading program in Oakland.
Repealing Obamacare will indeed get rid of the subsidies that some people recently signed up for. But that does not mean that we cannot find another way to specifically address health care for the poor. Because what good is Obamacare if 75% of doctors don’t accept it? How is that excellent healthcare for the poor? It’s a shiny new insurance card with a false promise of health care.