Supreme CourtThe Supreme Court has decided to wade back into the controversy over the Affordable Care Act (ACA) or “Obamacare” today with the granting of review of King v. Burwell, No. 14-114. I have previously written about the King case as well as the parallel case in the D.C. Circuit in Halbig.

As I have written about in columns and testimony, the most significant challenge to Obamacare was never Hobby Lobby but Halbig vs. Burwell that has been pending in the D.C. Circuit. I described Halbig in my testimony as a live torpedo in the water for Obamacare. Well, that torpedo hit when the D.C. Circuit found that the Obama Administration effectively rewrote the law on a critical provision dealing with tax credits and state exchanges. However, soon after the D.C. Circuit delivered that major loss to the Administration in rejecting its statutory interpretation under the ACA in Halbig v. Burwell, the United States Court of Appeals for the Fourth Circuit has delivered an equally important victory on the very same issue in King v. Burwell. This tale of two circuits only increases the likelihood of a Supreme Court review and perhaps the case for expedited appeals.

Fourth Circuit Judge Roger Gregory (who was nominated by George W. Bush but given an recess appointment by Bill Clinton) wrote for the panel. Gregory adopts the deferential standard advocated by Judge Edwards in his Halbig dissent. He finds that the law is ambiguous and thus “Applying deference to the IRS’s determination . . . we uphold the rule as a permissible exercise of the agency’s discretion.” It is a victory for Chevron, which some of us believe gives far too much deference to agencies in their actions and interpretations.

The decision to accept Kingis notable because the Halbig case in on en banc review — a review that could erase the split in the circuits. The acceptance of King shows a clear intention to address the issue by at least four justices regardless of any split. There is no requirement of a split for such a review. At issue is a foundational component of the ACA that could pose an existential threat to the program if the Fourth Circuit is reversed. Presumably, the Halbig case could be joined with King at a later date.

The case could again put Chief Justice Roberts in the position of saving or dooming the ACA with a court that has been deeply divided over the Act.

While I tended to agree with the Halbig analysis, I wrote a column objecting to attacks on the judges of both circuits as political hacks. There are good faith rationales in both opinions and long-standing positions reflected by the judges who voted on the respective panels. While I expect that people will again treat the matter as just another ideological contest of partisans on the Court, it is more than that. Much more.

Here is the opinion: King decision


  1. Can the states whom do not have exchanges, establish insurance amongst themselves with a market driven plan between those states?

  2. Does SCOTUS decision have any impact on Obama funding the ACA, through the Treasury or other unapproved money accounts, instead of a “Congress Approved Account”?

    1. Lisa Metzger – it is all going to hit the fan when this year’s rate increases are published.

  3. Re Squeeky’s click re AVA architect:
    “comments are neither recent nor complete” says Snopes. To me that is no surprise: the right revels in lying, distorting, removing (and when google it as titled first page of google where I stopped was all right wing, breitbart, fox, limbaugh, opinion from right wing commentator in Forbes magazine (who says he wants to change it completely,.) etccontext.
    And of course this is not breaking news at all. The video, 1 1/2 hours was posted as 53 seconds, and is what your article has, which removed all context. And btw 2013 when made is not “breaking news” . In fact I recall the news covering this when it came out in ’13

    1. Annie,since 70% of applicants to ACA qualified for Medicaid and were added to Medicaid, isn’t that single payer? My maiden Aunt was on Medicaid and was never turned down from any procedure. So, we seem to have what you suggest. The problem at this point is so many Dr’s don’t accept new Medicaid patients. It’s a combination of unrealistic ceilings on charges and the slow payment process. The amount of money wasted for ACA (pathetic computer site development/testing) could have paid for additions to Medicaid and left the rest of us where we were.

      References to other countries that have single payer make me laugh. They are small. We are a behemoth, and any attempt to bring health care under one umbrella is chaos. Health care for 300 million people is unmanageable. The states should have been the center for their population. The closer you are to a problem, the easier to understand and fix.

      Now the sloppy writing of the law has us all akimbo again. I will point out that during the one-day meeting Obama had with Republicans, many of these questionable items were brought up (it was televised) and to everyone he said it would be fixed. Well, they weren’t. That’s why millions of people lost the insurance they had or the premiums went sky high and unaffordable. The mistake was going behind closed doors and never getting Republican input. The mistake was having staff write this law instead of people actually working in hospitals, Dr’s offices, nurses, home health aides, etc. And zero input from Governors who work with health issues in their states every day. The hubris of Obama and Democrats didn’t help. Nancy strutting to the capital holding her gavel. A television picture of a door where Harry had his flock deciding what was right for us all.

      And because of sloppy writing we are back at the Supreme Court. Apparently, the IRS decided the law as written didn’t matter (remarkable, huh?) and gave subsidies, our tax $$$, to people they shouldn’t have (they do that a lot). And next June who knows what will happen?

  4. Well, here is something interesting! Nice short little 52 second video from Jonathan Gruber:

    Breaking: Obamacare architect admits Obama lied about his signature law

    Lack of transparency is a huge political advantage,” says the MIT economist who helped write Obamacare. “And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical for the thing to pass.”

    Squeeky Fromm
    Girl Reporter

  5. leej Not in Pa but do not disclose where I live now. Have ties to the college there.

  6. SWM Im in Pa and I have been assuming you are too with your name (:
    Yes Annie, the I have been there and I was successful in getting out means everyone can do as I did, with a lack of understanding that your experience is your experience and does not automatically extrapolate out to everyone else.
    DBQ glad you got out but not everyone can even if you refuse to believe that.
    Just talk for instance to some homeless vets with PRSD and tell them hey pull yourself up. So you saw death, probably killed folks, saw things no one should have to see, esp young people. I got out of it so you can do, and what it sounds like from your writing is the ending would be, you lazy bum..

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