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. @ Elaine.

    I know that is a serious topic and you are very right about the aspirin……but I couldn’t help but read your post with the tone of those commercials detailing all the horrific side effects of Cialis or other drugs…..ending with talk to your doctor.

    Sorry……LOL….I just came into my head like a commercial and I had visions of that dopy couple in separate bathtubs inexplicably out in the middle of nowhere.

  2. Sandi,

    One has to be very careful about giving children aspirin because of Reye’s syndrome.

    Reye’s (Ryes) syndrome is a rare but serious condition that causes swelling in the liver and brain. Reye’s syndrome most often affects children and teenagers recovering from a viral infection, most commonly the flu or chickenpox…

    Aspirin has been linked with Reye’s syndrome, so use caution when giving aspirin to children or teenagers. Though aspirin is approved for use in children older than age 2, children and teenagers recovering from chickenpox or flu-like symptoms should never take aspirin. Talk to your doctor if you have concerns.

  3. Sandi, I just called my docs office on Friday to schedule an appt. and got a list of 5 questions regarding travelling outside the country and contact w/ Ebola. My docs office seems more prepared than the CDC. Anyone see Dr. Big Gulp lately? The WH buried that bozo CDC director after realizing he was glaringly incompetent.

  4. I do love eggplant. I have recently started baking eggplant w/ bread crumbs rather than frying it. Then I assemble the eggplant w/ marinara and parmesan and bake. Once in awhile I’ll add some ricotta to it along w/ the parmesan. One of my grandpa’s specialties in his restaurant was eggplant parmesan grinders. His best seller @ lunch.

  5. I keep sauce simple. I start w/ pork, for flavor. It sweetens the sauce. A couple country style ribs for 4 cans of tomatoes. Braise the pork w/ garlic. Add the tomatoes, hand crushed. Season w/ salt pepper fresh oregano and basil, some crushed red pepper, and a splash of red wine.

  6. Sandi,

    The school district where I taught (1968-2004) had/has school nurses–as do other schools in my area. The parochial grammar school I attended never had a school nurse. I’d add that a school nurse can only do so much. We had some medical emergencies at my school when students had to be transported to hospitals. Many children with serious medical issues attend public schools. We’d be a healthier country if all our citizens had adequate healthcare coverage. The children of the poor–many of whom work hard for low wages–deserve to have good medical care. I believe it’s best for their development–both physically and educationally.

    1. Elaine M., I didn’t mean school nurses in lieu of health care. They can keep sick kids out of the classroom, protecting others. Also, our nurses had cough medicine, could give an aspirin. Trust me, some parents pay no attention to their kids and wouldn’t get them cough medicine. Kids are vulnerable. I don’t care how good their health care plan is, if they don’t get taken to a Dr. it won’t matter. My daughter was a nurse in an urgent care facility. A little boy came in and was treated and Mom was told next time give him over-the-counter cough medicine. Next week little boy back, again treated and my daughter gave Mom a bottle of medicine. The next time they saw the boy he was terribly sick and transferred to a hospital. The cough medicine. Dad drank it because it had alcohol in it. These situations happen everyday. Now how do you get these kids care? If they go to school with a nurse, they have a shot.

  7. @ Karen

    I like chunks of eggplant in my spaghetti sauce. Along with the onions, garlic, italian sausage, mushrooms, tomatoes, red wine, a bit of red wine vinegar, tad of sugar, salt, pepper, a few red pepper flakes, sweet basil

    Sautee onions, garlic and italian sausage (about 4 to 6 sausages depending on how much sauce, breaking up the chunks) pour off any fat. Add two cans of stewed tomatoes, spices, red wine, vinegar, sugar, salt etc. Add two cans of water and simmer low uncovered until it starts to reduce and is almost thick enough. If you want add a tbsp of tomato paste at this point if not thick enough or more water if too thick. (Probably a couple of hours at this point) Toss in sliced mushrooms and peeled eggplant in about 1 in diced pieces. Simmer until tender.

    Nom nom nom. We are having beef pot roast tonight with cheesy scalloped potatoes. I hate the potatoes IN the pot roast they get all mooshy. Plus a green salad and french bread.

  8. Nick – remember when Obama said that Democrats have to do what they have to do to get elected, but he knows they really have his back?

    That’s an admission that all these attempts by Dems to distance themselves from Obama are spurious.

  9. What I find interesting is the discussion about whether or not the Democratic party is in trouble as a result of Obama’s policies.

    Very recently, I was accused of misrepresenting the facts when I commented on this phenomena, and yet, here we are again . . . The results are “mostly” due to racism, voter suppression, or anything but a report card on how we’re doing so far.

    I would sincerely love for people to loudly proclaim to the next notary that they use that having to prove their identity with anything other than a utility bill is racist and suppressive.

  10. Of course, if Obama campaigned for Dems the Rep and independents would have come out even stronger.

  11. Obama obsessing on the 2/3 who didn’t vote was a message to his party. Remember, Dem pols treated him like he had Ebola. He was saying to them, if I campaigned for you they are my cultists, they would have come out. This mid term was like virtually all midterms, low turnout. Obama’s ego make’s Bubba look normal.

  12. Look, when the IRS or the administration completely changes the law, that’s a problem.

    It is irrelevant if their intentions are good or bad. The only salient point is that Congress enacts laws, not the IRS and not the President.

    It was a deliberate part of the law that the states would not get subsidies unless they set up their own exchanges. That was the carrot/stick approach to create those exchanges. Well, states did not behave as predicted. So now they can’t say, well, we really meant something else.

    There is a means to amend the law. Go through Congress and do it legally.

    And a note on bipartisan support and compromise: There are indeed issues where bipartisan support is expected and required. Going to war, for example. However, when issues raise fundamental differences between parties, then compromise simply enrages the base. For example, how do Democrats compromise on outlawing abortion? How can Republicans compromise on Obamacare when many were elected specifically to repeal it? It is hardly newsworthy when parties do not compromise on fundamental ideological differences of opinion. How can they?

    Squeeky – thanks for the recipe. Does anyone have a fantastic recipe for eggplant? I have one in my refrigerator, staring accusingly at me because it’s now 5 days old, and I still have no plans for it.

  13. Paul, You watching your Sun Devils? I have come to root for them. And, I always root for whomever is playing ND. I don’t remember these 2 teams playing each other recently? Looks like a beautiful day in Zoni land. Did you know people in San Diego call you folks, Zoni’s? Is that a slur?

    1. Nick – I am recording the game. If we win I will watch it. If we lose then I do not have the agony of watching us lose. I will just get the news report.
      BTW, we do not mind being called Zonis. We are very fond of San Diego and most of us visit there every year or two.

  14. I’m just wondering . . . do you believe the 2/3 of voters who didn’t vote support Obama and his policies? Do you think they chose not to vote because they support him? Do you believe that his approval rating in the 30s has no relevance on this election? Karen, It seems like they did vote for him twice. He was not actually on the ballot, you know.

  15. SWM:

    “If you think some election with a very low turnout changed anything for us, you are whistlin’ dixie with squeaks.”

    I’m just wondering . . . do you believe the 2/3 of voters who didn’t vote support Obama and his policies? Do you think they chose not to vote because they support him? Do you believe that his approval rating in the 30s has no relevance on this election?

    Because when I’ve listened to Obama recently, he appears to infer that those 2/3 of people who didn’t vote are really with him, and his has this silent mandate. Kind of like take the opposite of what actually happened in the election and make that his truth.

    All you have to do is review this blog for some very serious failings by this administration. I really don’t understand why they are excused.

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