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. LeeJ,
    Some folks just enjoy talking tough on the Internet. Those are the pull yerself up by yer own bootstraps kind of folks, but they don’t care that the poor “incompetent” doesn’t have any boots.

  2. Nothing I write will open your eyes to other people’s calamaties or the fact that it could easily be you. And how sad for you I find this to be

    You don’t know anything about me or my life, so don’t bother to condescend to pretend to feel sad about me. I don’t need your false sympathy. But I will tell you this. It WAS me at one time..So low that down looked like up, as the old saying goes. I have been there and I know that it is hard. I also don’t have any sympathy for those who could help themselves but won’t. There are those who really can’t help themselves or who are truly disabled and unable. I understand that too and am more than willing to be of help or donate to causes that help those.

    You are right…..nothing you will write will change my mind. I’ve been there. Done that. Didn’t get the tee shirt….thank God. Have seen and lived that life and know that it isn’t impossible to get out.

    I don’t have empathy? Right. I don’t.

  3. not that it is your business but I have bundled internet . As my disability keeps me housebound for most of the day this is often the only social interaction I have.
    I do not recall needing ID to open my bank account. In fact 1 was opened on line I believe by only using my SS number as verification.
    When I lived in NYC and did not drive I had no photo ID yet opened a bank account, qualified for ss disability and until that kicked in was on welfare, Since I had no phot ID evidently I did not need one.
    BTW I am white, college educated and grew up upper middle class. It can happen to anyone.
    Irt is not “scraping up 20$ in 30 years, it is someone who did not know until now they had to pay for that.
    Nothing I write will open your eyes to other people’s calamaties or the fact that it could easily be you. And how sad for you I find this to be,

  4. Oh baloney. If you can’t scrape up $20 in 30 years to get a birth certificate, can’t find the time……or can’t find an agency or charity (there are many) to help you with this, then you aren’t even trying. If you smoke cigarettes, drink sodas, drink beer, buy drugs, eat potato chips, have tattoos……you have plenty of money for something as essential as a birth certificate. If you have NO identification, how are you even collecting welfare or cashing an SSI check, opening a bank account or any thing else?.

    You can pull the wool over some people’s eyes and try to get them to buy this sob story. I’m not buying it.

    If you want to help these people, great!!!! You have two years to get them all ship shape and ready to vote.

    You are right. I don’t have empathy for people who could do for themselves but don’t. I don’t have empathy for whiners and complainers. If they truly do need help…..and I know there are many people who do need help…..then they can get help and take some responsibility for themselves.

  5. DBQ 20$ may not be a lot to you but for people on disability or assistance it is a lot of money. I am glad it is only a pittance for you. I am on disability and 2 levels under the poverty line. By the time I pay my insurance, electric, food costs etc, 20$ is very valuable to me. Again it is the haves saying foo on you to those who don’t have. I just hope you never become unable or disabled and find yourself in the circumstances many find themselves in through no fault of their own. (I was fine and within literally a second, I became disabled and have remained so for over 30 years. You never know what life has in store for you. I don’t know about “karma” but your lack of empathy I hope does not come back to you in the end.)

    1. leejcaroll – yet you seem to have Internet access. Are you getting it free from your library or paying from your internet supplier?


    No Paul, I know exactly what is in the food I eat. I don’t eat processed foods. I make my own bread and baked goods out of sourdough einkorn flour, I use farm eggs, I use organic milk, I make my own yogurt, etc. etc. Paul, when shopping, it pays to read labels to know what the things you consume are made of, if those things are toxic, avoid them. Consuming toxic things will make YOU toxic. Now don’t say I never gave you good advice.

  7. Karen – Arizona was so badly gerrymandered by a supposed neutral committee that the courts have agreed that it has to be redone.

  8. CA is infamous for gerrymandering. Here’s an article on the phenomenon and a suggestion for reform using proportional representation. I do not know the pros and cons of that suggestion, though:

    This is an article explaining that Republicans did more of the most gerrymandered districts, but the most gerrymandered district was created by Democrats:

    I oppose political tricks like gerrymandering, as well as others such as amnesty for millions of illegal aliens to get a permanent Democratic majority.

    All of those tricks are unfair, and we really need reform, including for political contributions and mandatory deductions from union members for political donations they don’t get to pick. It should all be reformed.

  9. Oh those terrible lazy incompetent folks, what would we do without them? Just think, if we didn’t have them Glibertarians wouldn’t be able to talk tough on the Internet. Those incompetents serve a purpose after all, to make Glibertarians feel better about themselves.

          1. Paul,
            I don’t have diabetes and actually I don’t eat sugar. I use a wonderful natural sweetener called Natural Mate.

            1. Annie – just be very careful. You never know what is in the products you eat.

  10. Encourage people all you want. It is a laudable goal to get everyone who is not LEGALLY registered to vote to become registered. It is a good thing. Why don’t you do it? Set up an organization in your community. Help those who are unable to help themselves to get LEGAL ID if they don’t have it already. The State, if they haven’t done so already, should set up a program to provide access for people to get ID and for those who are too poor to afford $10 or so to get a non diver’s ID or other ID….then they can be subsidized. If people don’t have the ability to get themselves to their LEGALLY registered voting location…..set up a car pool for them. I know that not everyone has access to transportation. Why don’t you help them out?

    DO IT!!!

    However, there is no excuse for people to lazy to get LEGAL ID (how are they even LIVING without ID is another question) or too lazy to register to vote before the last 10 minutes of the pols opening or closing. You have had YEARS to accomplish these things. Get off your uninformed lazy butts and get into the 21st century. The oh….gee…..I forgot excuse. Or the OMG I can’t afford $20 to take care of business doesn’t fly with me. Get help!

  11. SWM and LeeJ, I’m surprised we haven’t seen the words wah wah wah yet. The lack of compassion for “incompetent” people we see is just a trait of Glibertarianism and a certain personality type. I have a cousin who is a Glibertarian, they love tough talk, they love to elevate themselves, yet when they need help, they are the first to sign on to government benefits, excusing themselves for needing it, while continuing to disparage those who also need help.

  12. Leej, With record low turnouts, one would think the most civic minded thing to do would be to encourage people to vote not discourage them, but that is not the agenda of this crowd.

  13. 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.

    It costs about $20 to get a birth certificate from the County of birth here in California. If he can’t afford $20 for this over his entire life….then Eric has bigger problems than just not being able to get a certificate.

    You don’t need a Driver’s License to vote. The 93 yr old guy could have gotten a valid non driver ID anytime in the last 30 years.

    I have no patience for people who can easily accomplish tasks themselves or who do not get any assistance. There are many agencies and private charities that are available to help. SO unless they are living under that rock or have zero contact with people, there is not excuse.

    My heart does NOT bleed for them.

  14. she had no way to know her phot ID license would be refused. It is photo ID

    It is expired ID and is not valid…..for anything.

    What difference is it if your birth certificate is under a mother’s maiden name? That is a ridiculous complaint. You can get a certificate or get an affidavit of birth even IF you don’t have a birth certificate available. I have detailed this process in several previous comments. It isn’t rocket science. If people need help in this….then help THEM.

    We don’t make laws or rules that affect everyone for a few outliers. Because “some” people are ignorant or unable to navigate in the world doesn’t mean that we throw away laws and rules that protect the rest of us. IF you are so concerned about the outliers, then do something about them. Start a foundation to help the incompetents to be able to comply with the laws.

    People who do not have ID in this current world…..there is something seriously wrong with them. ID is required for almost every activity in modern civilization. If you don’t want to participate in modern civilization and live under a rock fine….live under a rock, or in a bush…just don’t whine when things don’t work out because you don’t want to comply with the laws.

  15. I knew you would complain cause it’s huff post. But I notice you ignored the man with 3 ID’s. That was from a Dallas newspaper. BTW When I got my new license they told me to save the old one just in case I needed to show ID and did nit have the new one with me.
    and the woman with the suspended license, she had no way to know her phot ID license would be refused. It is photo ID.
    I moved and had not thought to change my address on my registration etc. It happens. So you shouldn’t be able to vote even though ou have photo ID. Right, that is called suppression, Now your call is not ‘photo ID, photo ID” but very specific ID and even when legit or unable like the person whose birth certificate was under mother’s maiden name that is not suppression but legitimate. No it was refusal when the person had clear ID.
    But nothing will satisfy you, Nick, and others here who are unwilling to look outside of your narrow boxes to see that there are instances , in all of life, not just voting, where someone is not able to g et what is needed because the state, or others, put obstacles in the way that are unbreachable or at least unbreachable in a timely fashion.

    1. leejcaroll – it is not voter suppression, it is called having the wrong ID. Don’t know about where you live, but in Arizona you have a limited amount to time to change the address on your DL. Here you can do it over the Internet.

  16. When are the Republicans going to put up a Bill to completely repeal Obamacare? The guy who won in NC said they would repeal all of it. Inquiring minds need to know because I have a friend who had a “pre existing condition” and could not get medical insurance coverage from Blue Cross or any company before the ACA. Now he has coverage and sees a doctor once a year. He is not a drain but he does not want to get kicked off. He is moving to Canada when the ACA is repealed. Shall he have a year or only six months? His house is up for sale. What do you folks think? Six months?

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