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. Judges have always been political and at times taken the low road in support of partisianship.. Its the hate and the whinning that has become more prevalent today than years ago.

  2. I am a retired Prof. and Vice-Chair of Psychiatry in Miami. As a conservative, I admire the liberals like you, that know the difference between ideology and partisanship. I wrote these thoughts the day of the mix decisions.;

    TAKE ME TO COURT 7/25/2014

    It is more likely than not, that the two opposite interpretations of the legality of subsidies given in the A.C.A. “Obamacare”, by the federal exchanges will need clarification by the Supreme Court. The dispute is based on a rule in the law that states that subsidies, in the form of tax credits, will go to those who purchase insurance in an “exchange established by the state.” A federal appeals court in Washington in a two to one decision, ruled that congress did not provide that help to purchases done through federal exchanges, thus throwing into chaos the purchases in the 36 states that did not set up exchanges. Judge Thomas Griffith, writing for the majority in Halbig v Burwell, acknowledges the disruption that this decision will provoke in the life’s of citizens but stated that “the principle of legislative supremacy”, has more weight. The opponents of Obamacare had just started to celebrate this potential blow to the law, when in a similar case Virginia’s court of appeals made a different judgment. This court ruled that the government had a stronger position albeit “only slightly”, based on the clear intent throughout the other provisions of the A.C.A., to help those who could not afford the purchases. What is again at issue is the growing debate between flexibility given to the executive branch to administer a law, changing its execution for practical or obvious reasons, against the abuse of this often used mechanism, “de facto” changing the law. The justices are divided in this issue, some following more closely the law as written as congress intent, and others that would leave the agencies to interpret the “ambiguities”. In the case of this dispute if we would apply the intent, versus the wording it might seem obvious that offering the subsidies were to congress more important than by whom. But then, one might ask, why such a clear statement assuming this responsibility to the states? It is not unusual that the federal government uses economic incentives to states in order to force a mandate. Was this the reasoning? Jonathan Gruber was touted by Obama and his acolytes as the “architect of the A.C.A.”, mainly because he also had a role in the law established by Romney. In 2012, while doing his role of praising Obamacare to industry groups said “the law that has state governments administer enrollments, I think what’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits”, thus undermining the alleged intent previously cited and highlighting the difficulty of ascertaining intent of other’s thoughts. As far of what will the Supreme Court decide, in the event that they decide to hear the case, a constitutional scholar Jonathan Turley, George Washington University Professor, believes that it might be “the torpedo” that sinks Obamacare. Important to note that Mr. Turley is a defender of the separation of powers and, even as a noted liberal thinker, has strongly criticized the Obama administration for, in his opinion, acting in ways that are unconstitutional. Two recent SCOTUS decisions from opposite ideological representatives might bring light, and further confusion, to what might be ahead. Elena Kagan, an Obama appointee, in the case Michigan v Bay Mills, opined “but this Court does not revise legislation, as [the IRS] proposes, just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts-addressing one thing without examining all others that might merit comparable treatment”. Judge Anthony Scalia , not surprisingly, agrees on following the wording of the law in Utility Air v EPA, “we conclude that [IRS’s] rewriting of the statutory [criteria for tax-credit eligibility] was impermissible…An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.”
    Interesting times to be sure, with the demise of the much debated Obamacare law at stake.
    Fernando J Milanes MD

  3. Obamacare should not be politically divisive. It should unify both parties to repeal it.

    Doubling premiums for the middle class = bad
    Increasing deductibles 1100% = bad
    Only 25% of doctors in CA accept it because of the low pay = bad
    Tight drug formulary with zero off-formulary benefits = bad

    It’s completely heartless to support this law. It’s a false promise of health care for the poor. All they get is a shiny insurance card few accept. And health care was taken away from the middle class. Now, millions of people who liked, and could afford, their health insurance, now have to choose between paying their insurance or buying food. And they’ll be fined if they choose the food. This is a direct result of Obamacare.


    Anyone who supports this travesty of a law will change his or her tune when the employer mandate hits. Already, millions of people are in financial difficulty specifically because of Obamacare. Just wait until that figure rises to include the vast majority of people. The flimsy arguments, that ignore the basic, fundamental math intuitively obvious to the most casual observer, will fall flat when most people are in the same boat I’m in.

    The question is, are we a naive enough people that Obama’s tactic of illegally delaying the employer mandate until after the next election will convince us that, magically, it will have a different result than the individual market did? Will we continue to completely ignore the math, the real devastation this has caused, because we want to “feel good” or that “we’re doing something?”

  4. Paul C. Schulte

    Jonathan, you can protest as much as much as you like, but it will do you no good. Extreme partisanship is part of the current process.
    Why don’t you tell on him to the Pope like you do everyone else for being “uncivil?”

    A regular riot I tells ya, a regular riot.

  5. “Hey,” the two judges said.

    “He wants health care for those in need, those in pain, those who are sick.

    And so does the congress.


    But they misused a sentence in their book.

    I know, let’s punish the sick to show them we know law gooder than Goober.”

    Dorks aplenty.

  6. Paul;

    Only – IF – they were voting what logic dictates is incorrect.

    Upon full review of the opines, you’ll see that the men have slant against women that ain’t exactly kosher. A right lean that is down right mean.

  7. slohrss29

    Nice post Dredd!

    I actually feel the US gov has latched on the genius of the Twilight Zone–“The Monsters Are Due on Maple Street.” From Russians to healthcare to just about anything else, it is scare and incite the herd mentality. Media fans the hysteria as well, unless there would be an announcement of world peace breaking out, then they would rationalize it like “The Front Fell Off.”
    British dry humor is catchy for sure.

  8. The key wording is that tax credits can be obtained only through state exchanges. That wording is clear. Any judge who says he can’t understand that language is not being forthright and objective and is engaging in politics not jurisprudence.

    The contradiction is that judges present “differing” opinions. Impossible. Given the “exception to the rule,” the words of any law must be seen the same by all judges. Objective assessment of cases by judges has to lead them to the same conclusion as to whether the action comports with the law.

    Judges have no power or authority to legislate or modify legislation. Veiled attempts to do so should not be conducted with impunity. Individually or collectively, judges must be scrutinized with corrective action applicable. The executive and legislative branches are vulnerable through the election process while judges “decide” with impunity.

    Doctors must agree on the appropriate treatment for disease. Doctors must cure the patient. The laws of physics dictate that there is only one efficacious treatment for any particular disease. Multiple doctors must come to the same conclusion on treatment. The rest will fail. The doctor that disagrees will reveal a systemic failure or be a failure. Medical doctors have malpractice insurance. Judges should have malpractice insurance. The judicial branch must be subject to review by the legislative branch.

    The system is not viable if judges “legislate from the bench.”

    The judicial branch may be leading America to the “tipping point” sequel.

  9. Here is an example of how this “You’re crazy” stuff degenerates into real actions:

    “A former IRS official at the heart of the agency’s tea party controversy called conservative Republicans “crazies” and more in emails released Wednesday.

    Lois Lerner headed the IRS division that handles applications for tax-exempt status. In a series of emails with a colleague in November 2012, Lerner made two disparaging remarks about members of the GOP, including one remark that was profane.

    In one email, Lerner called members of the GOP crazies. In the other, she called them “a$$holes.” The committee redacted the wording to “_holes” in the material it released publicly but a committee spokeswoman confirmed to the AP that the email said “a$$holes.”

    Squeeky Fromm
    Girl Reporter

  10. It is rather sad and counterproductive that too many people immediately run to their dearly held political beliefs and castigate anyone who disagrees before they even look at the facts and the need to be objective.

    Those doing so are nothing more than shills for a particular political party or mantra and not interested in addressing issues for the common good.

    Objectivity is usually best in problem solving.

  11. Nice post Dredd!

    I actually feel the US gov has latched on the genius of the Twilight Zone–“The Monsters Are Due on Maple Street.” From Russians to healthcare to just about anything else, it is scare and incite the herd mentality. Media fans the hysteria as well, unless there would be an announcement of world peace breaking out, then they would rationalize it like “The Front Fell Off.”

  12. ConLaw, right? Policy is part of SCOTUS level jurisprudence, so politics will enter.

    However, the policy aspect does not excuse our ignoring the meticulous analyses that SCOTUS rulings afford us. In fact, the policy aspect of SCOTUS rulings, both in the majority and the dissent, do much to cast a needed inquisitorial light on the varied views of the policy debate.

  13. Get the truth, guys! Check out ILLUMINATI SECRETS EXPOSED on YouTube.The Democrats suck, the Republicans suck, the Troops suck! Why? Because they are the brain child & under control of the Illuminati & everyone knows the Illuminati sucks!

  14. Here’s my actual post on this issue Steve H. I don’t think it supports what you wrote about me but we’ll let it speak for itself or you can show me how it does!

    J.T, I think this is a well argued column. I do think there is partisan demonization. This does prevent seeing other people as human beings with their own thoughts, arriving at conclusions which were honestly based, but with which we disagree.

    However, I also believe that the judicial branch has become politicized, not by party, but by alliance with powerful elites. That is why John Roberts, a Republican, saved the ACA by repudiating his own past legal rationals in every other case before him. The courts have not been standing for the rule of law, they have not held the executive to account in something as important as justice for victims of torture by the USG.

    People in our nation have every reason to distrust every branch of govt. That distrust was earned by each branch’s willingness to abrogate the rule of law. This distrust has been channeled into a useful idiocy–the red and blue state paradigm of good and evil, America’s newest religion.

    So yes, it is important to take each ruling and examine it carefully. Is there a basis in law for it? If so, good for that judge. But it is also correct to consider there are less than sterling motives in rulings, not based on party, but on a lawless rule of the few over the many.

  15. It is okay to attack a justice’s rulings on the merits of such;
    and (especially so) when there’s evidence of bias.

    Judge’s are human beings – and therefore – flawed in many ways.

    The recent U.S. Supreme Court decisions are demonstrative that things are way out of control (i.e. all male judge’s ruled against woman’s rights – an Obvious “just cause” for concern).

    Civility is maintained to a common core belief that the scales of justice blindfold means something (though – arguably – not what most ppl think).

    Questions of judicial immunity and abuse are now common place.

    Judge’s have immunity; and some use that to benefit themselves unjustly. There’s legitimate concern that no attorney may even dare question a justice’s ruling; lest he/she lose their Bar Cards (just ask Richard Fine in Los Angeles – who was incarcerated – without a charge – for suing CA State Supreme Court Justices for receiving illegal payments of $50,000 per year. Richard Fine stayed in jail for over a year; and Governor Schwarznegger had to Pardon the State Supreme Justice’s wrong doings.

    We have the inherent right to question – The Questionable!

    1. Laser – all women justices voted for women’s rights. Wouldn’t that be cause for concern?

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