250px-Lewis_F_Powell,_Jr_U_S_Courthouse,_Richmond,_VA_Sep_03250px-Meade_and_Prettyman_CourthouseBelow is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.


When the District of Columbia Circuit ruled last week that the Obama administration was violating the Affordable Care Act (ACA) in authorizing billions in tax credits, it took little time for leading Democrats to respond. Senate Majority Leader Harry Reid promptly labeled the ruling in Halbig v. Burwell “absurd,” simply the work of “activist Republican judges.” Less than two hours later, Democratically appointed judges across the river in Virginia reached the opposite result in King v. Burwell. The response from the right was equally predictable: The judges were Democratic drones carrying the water for the White House.

In a scripted town that defines all issues in blue or red, the lineup of the judges fits both parties’ preferred narrative. The opposing side was reduced to shameless opportunists. With that, the world made perfect sense and everyone was happy. The Potomac became simply another river with a left and right bank. Where you stand determines what is true.

Faux partisanship

The only problem is that none of it is true.

The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.

I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)

The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.

Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.

Real issues

At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.

The conflict could have involved chicken subsidies, and the result would have been the same.

Similarly, when the Supreme Court comes out with a 5-4 opinion, both parties denounce the justices on the opposing sides as ideologues — ignoring the obvious problem that the justices on their side showed the same predictable alignment. The reason that the result was predictable is that honest jurists strive to consistently apply principles of statutory interpretation.

Reid, however, assured Democrats that when the Halbig case goes before the full D.C. Circuit, a majority of Democratically nominated judges means it becomes “simple math.” Republicans are saying the same about the Supreme Court lineup. Both sides could find themselves disappointed. Jurists are not so easily pegged by political affiliation like some election night red or blue states on CNN’s “magic wall.”

What occurred last week on either side of the Potomac captured a divide in legal theory that has existed for decades, not cheap partisan politics.

Of course, none of this matters in today’s politics. People who disagree with us must be without honor. It is not enough to disagree with judges’ opinions; we must despise the judges. Regardless of how the next group of judges come out on these interpretive questions, we should at least be willing to accept that they are acting on long-standing judicial principles, not the partisan emotions of the moment.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

July 30, 2014


  1. From

    “Turley uses the phrase “key players,” suggesting that there are multiple people involved in the crafting of the legislation who thought that the tax credits would not be available on the federally established exchanges. But he in fact cites exactly one, Jonathan Gruber, and in that cite fails to note that Gruber repudiated this position not merely after the fact but before the fact. And the idea that Gruber’s extemporaneous and ambiguous remarks are sufficient to establish a genuine controversy when his interpretation is rejected by everyone else involved is farcical.”

  2. Tax credits are obtained through state exchanges and nowhere else. The judicial branch disingenuously and politically claims the law is unintelligible. Were that true, the judicial should revert the law to the legislative branch and compel modification. A false claim of unintelligibility does not provide for default of the legislative process to the judicial branch.

    NEVER was it intended for the judicial branch to legislate and that is the overriding issue.

    The power to legislate lies solely and immutably with the people through the legislative branch.

    America is not a dictatorship of the judicial branch. Or is it?

    The judicial branch allies with the executive to conduct a coup d’état in America.

    Does anyone support and uphold the Constitution?

    Are the Preamble, Constitution and Bill of Rights unintelligible even as the

    Communist Manifesto is crystal clear:

    “Control of the means of production.”

    “From each according to his ability, to each according to his need.”

    The inmates have taken over the asylum.

  3. Obamacare is unconstitutional and would never have made it through an objective judicial branch.

    Obama is ineligible for the office as the son of a foreign citizen (now everyone is seeing his transformational “foreign allegiances”)…

    and on and on and on.


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