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. and this: A disabled woman in Travis County was turned away from voting because she couldn’t afford to pay her parking tickets. An IHOP dishwasher from Mercedes can’t afford the cost of getting a new birth certificate, which he would need to obtain the special photo ID card required for voting. A student at a historically black college in Marshall, who registered some of her fellow students to vote, won’t be able to cast a ballot herself because her driver’s license isn’t from Texas and the state wouldn’t accept her student identification card.

    he early voting period is still going on in Texas, but voters and election officials told The Huffington Post there have already been problems casting ballots due to the new restrictive measure. Under the law, Texans without acceptable forms of identification must go to a driver’s license office to get a voting card. In Austin, 45-year-old Eric Kennie, who hasn’t set foot outside the state his whole life, couldn’t get his card because the birth certificate he struggled to afford lists his mother’s maiden name. In Houston, an election judge claims that a 93-year-old veteran was turned away from the polls because his driver’s license had been expired for too long. Another 62-year-old woman told MSNBC that she was threatened with jail time when she went to obtain her voter ID because she was driving with a California license.

    Dana DeBeauvoir, the clerk responsible for overseeing election conduct in Travis County, which has over one million people and includes the city of Austin, said she spoke this week to a 61-year-old disabled woman, Madeleine, who was “in tears” because she was turned away when she went to vote at a grocery store.

    The low-income woman is on a payment plan with a court to pay off her parking tickets, DeBeauvoir said, and while she’s on the plan, her license is suspended. Now, Madeleine has to quickly get to a driver’s license office to get a voting card. Her disability qualifies her to vote by mail, but she missed that deadline because she didn’t know her license would be denied.

    1. leejcaroll – I can tell you that when you go to college, the college is not your residence. You belong to your home state. And the woman with a CA driver’s licence should have been arrested. If you are a citizen of the state, i.e., registered to vote in the state, you are required to get a licence from the state you are living in. And an expired DL is an expired DL. You are required to renew them or get rid of them. They are not ID after they are expired. The woman with the parking tickets is the victim of her own problems. You would have to have a ton of parking tickets before they suspended your licence. She is clearly an under informed voter (or non-voter). That dishwasher would be required to pay for a birth certificate to get a driver’s licence as well.

      HuffPuff is just crying tears over nothing. Did they say anything about the voting machines that kept changing Republican votes to Democratic?

  2. Sandy, it is not so easy:

    “…He is unable to get around easily. Mr. McGriff got to the polls during early voting because Susan McMinn, an experienced election volunteer, gave him a ride. He brought with him his expired driver’s license, his birth certificate, his voter registration card, and other documentation, but none were sufficient under Texas’s new photo ID requirement. Getting the EIC would have been difficult for him — it would have required multiple additional trips and he cannot drive.

    Despite his health and mobility problems, the poll workers did not suggest that he vote by absentee ballot — an option available to him because he had a disability. Eventually, he was given an absentee ballot application, but it was only because, Ms. McMinn, the volunteer, suggested the idea, and then pushed a poll worker to review the rules after having already told Mr. McGriff it was too late. After the poll worker confirmed her mistake, Mr. McGriff was able to get an absentee ballot application. But when he tried to get stamps at the election office, election workers did not inform him that his absentee ballot would include return postage, so Ms. McMinn and Mr. McGriff had to spend additional time driving around in search of postage. Ms. McMinn paid the $2 in postage, as Mr. McGriff is living on a tight budget. She drove him back to drop off his application, and a few days later he successfully voted by mail….”

    3 forms of ID and still did not get to vote.

  3. @ Karen

    Simmer the sauce for a couple of hours. Break up the stewed tomatoes with a wooden spoon as you occasionally stir. Add more water if needed. I usually make a really really big batch. About 3 to 4 times the amounts I listed and freeze in those handy dandy glad freezer containers. After all, If I’m going to spend hours making the stuff, might as well make a LOT. The sauce is really chunky. Rigatoni or more robust noodles are our favorite as opposed to spaghetti noodles.

    I’m going to try the baked eggplant ala nick. Fried foods are not good for my husband who is type 2 diabetic. Sounds good.


    I thought I posted this here already but maybe not or if I did it was ignored by those who are saying the results were a referendum on the pres.

    “…The GOP benefitted from the most egregious gerrymandering in American history.

    As Rolling Stone reported, GOP donors plowed cash into state legislative efforts in 2010 for the very purpose of redrawing congressional lines. In the following year, as the tea party wave brought hundreds of Republicans into office, newly empowered Republican governors and state legislatures carved congressional districts for maximum partisan advantage. Democrats attempted this too, but only in two states: Maryland and Illinois. For the GOP however, strictly partisan gerrymandering prevailed in Ohio, Pennsylvania Virginia, North Carolina, Georgia, Florida, Texas, Louisiana, Arizona, Tennessee and beyond.

    Here’s an example from the election last night. In Pennsylvania, one state in which the GOP drew the congressional districts in a brazenly partisan way, Democratic candidates collected 44 percent of the vote, yet Democratic candidates won only 5 House seats out of 18. In other words, Democrats secured only 27 percent of Pennsylvania’s congressional seats despite winning nearly half of the votes. See the graph below:…”

  5. Karen S, thank you for your positive words. Where have the rights of parents gone? If my daughter needed medicine, I would make the decision of her maturity to use medicine properly. The zero tolerance policies stink. For every problem, there is a solution. But if you aren’t able to discuss and come to an agreement, then solutions aren’t found. It’s about control. Schools want to control children. Libs want tolerance of gay marriage, marijuana use, etc. But they have no tolerance themselves. Parents, teachers, schools should work together, especially in unique situations. Instead their fighting one another. It’s basically common sense, which this country has forgotten how to use.

  6. You have different seasons out there. Eggplant and pepper season just passed a few weeks ago here. I roasted up a bunch of red peppers and did the eggplant.

  7. Thanks, Nick. I’ll try that. And good tip about freezing ahead of time. I just got a chest freezer. 🙂

    I always use Parmesan Reggiano, and grate it myself as needed. It taste so much better.

    That stuff in a can is sawdust.

  8. Karen, Great question. I assume you peel the eggplant because the skin is bitter. But, my grandparents taught us to slice it fairly thin and salt the slices fairly heavily. Then, lay they out on cloth to drain for ~30 min. Eggplant has a high water content and they claim that draining some of the water also helped both w/ the bitterness and frying. But, we bake it now. Finally, regarding bitterness, an overripe eggplant is more bitter than a ripe one.

    I found out the hard way you need to keep an eye on the slices when you do the first baking. I bake them @ 325 for ~15-20 minutes, or until lightly brown. When they start to brown they can go from light to dark brown quickly, sorta like biscuits. I do egg, panko crumbs for crust. When you assemble the pieces w/ sauce and cheese, use Parmesan Reggiano. I know it’s expensive but a chunk lasts a long time. You need less of the good stuff and it will last in the fridge for months. And, the taste is so much better. I bought a bunch off eggplants from a Hmong farmer I know and baked them off and froze the baked slices for assembly when desired.

  9. And good point about personal responsibility.

    I support programs that help the poor and the elderly get IDs. But at some point, people need to be willing to take responsibility and put in some effort of their own. We have free IDs, transportation to polls, mail in ballots, and people STILL claim voter suppression.

    Lots of people don’t vote because they don’t bother. That is no one’s fault but their own. All states have mail-in ballots, and more than 30 allow early voting. Seriously, if you won’t make the minimum of effort then voting is not that important to you.

  10. Sandi:

    I like the idea of trying healthcare reform on a small scale, state by state. Plus, every state is unique in its demographics and challenges.

    It’s interesting how you bring up medications in schools. They no longer allow children to have any medication at all, including asthma medicine. I used to ride with a girl who had terrible asthma, worse than mine. She’d be fine one minute and prostrate the next. Her high school wouldn’t allow her to carry her asthma medicine, or let teachers give it to her. She had to walk to the nurse’s office if she needed it. Well, the first time that happened, she couldn’t make it, and her attack escalated so much an ambulance had to come. It took major fighting and threat of lawsuit for them to allow teachers to have her medicine. They still wouldn’t let her carry it, even though she was a teenager.

    It was a zero tolerance policy, and we all know how stupid those are.

  11. DBQ – that sounds so delicious. I’m going to try it this week. How long do you usually simmer the sauce to reduce? A few hours on low?

    Nick – how long do you bake the eggplant first? I’ve tried to make eggplant parmesan before, because I love it in restaurants, but when I made it, the eggplant tasted bitter. Are you supposed to do something to take the bitterness out of the eggplant, or was it just unripe?

    I love to cook, but eggplant has been a challenge for me. 🙂

  12. Politics aside, just curious, who’s getting fired for writing another lousy law? Oh, that’s right? Nobody. They had also forgotten a severability clause. People do make mistakes, no doubt, but writing laws is supposed to be Congress’ CORE COMPETENCE.

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