Supreme Court Hears ACA Challenge Amid Dire Warnings From The Administration

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. Today, the Supreme Court will hear oral arguments in King and there appears a rather transparent effort by the Administration to give justices sticker shock in considering the challenge, particularly Chief Justice John Roberts. [For full disclosure, I am lead counsel in the challenge filed by the United States House of Representatives to different ACA changes ordered unilaterally by President Obama in House of Representatives v. Burwell.

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 a 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 King is 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.

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

220px-File-Official_roberts_CJ_croppedThe 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. Roberts appeared to have switched sides soon before the issuance in the individual mandate case — a decision that saved the ACA but also produced a rather convoluted opinion. Now the Administration seems to be trying to influence Roberts with dire predictions about what would occur if he or his colleagues vote against the President. Obviously, the ramifications of a legal interpretation should not influence the Court but clearly some believe it may factor into the analysis.

Sylvia Mathews Burwell, the Health and Human Services secretary, told lawmakers in a letter on Tuesday that millions of Americans would lose their health insurance if the court rules against President Barack Obama’s administration in the case, which is expected to be decided by June. The timing of the letter is rather obvious and the question is whether such heavy-handed moves could backfire. It seems pretty obvious who the letter is really directed toward and Roberts may feel like he is being played as a chump.

Ironically, there is no need for the letter. As I have noted in the past, King and Halbig represent serious threats to the ACA, even though there could be legislative remedies. The problem is that the President has burned every bridge with Congress in continuing to take unilateral actions in violation of the the Separation of Powers (at least in the view of some of us).

In the end, this type of public campaign can irritate and alienate justices before an argument. Whether the President acted constitutionally (and I believe that he did not) should not be a question that turns on how you feel about health care or the ramification of enforcing what you believe is the constitutional mandate.

112 thoughts on “Supreme Court Hears ACA Challenge Amid Dire Warnings From The Administration”

  1. Olly….the point of Prof Hayakawa’s book is to illustrate that words mean what they say…e.g., the word itself is what is meant. If anyone in the Executive branch is now allowed to interpret a word’s meaning to fit their ideas, not the original writer’s or speaker’s from within a legislature, then you are right…the law becomes moot. Without words having succinct meanings, the can be no law per se. That’s what I was referring to in my “coup d’etat” comment earlier…it seems to have already occurred while we slept.

    The most recent FCC decision to regulate the Internet is a classic example…interpretations of law written long before there was an Internet as fitting the Internet, when the legislators back then could not have had the slightest intention of that future aspect. That Congress has repeatedly refused to enact new law governing the Internet seems to mean nothing…rules will be issued by edict. I really question whether we still are a civil society functioning under a rule of law. For example, how have we managed to go 6 now 7 years with nothing but a CR, which has rather loose rules for fund allocation…e.g., no formal Congressional budget with 12 major appropriations defining expenditure?

    Stepping back a bit, how did our SCOTUS determine that a “penalty” for non-performance was the same as a “tax” for the proceeds of performance? We are already well down the slippery slope I’d say….

  2. Aridog,
    How can civil society function under the rule of law if law is no longer what is said but rather what is meant?

  3. Meanwhile, ignoring the waddling candidate Clinton for a moment, here is what I posted elsewhere today vis a vis the topic of the ACA & the “state” argument for subsidy, etc.:

    If Roberts can rig “penalty” in to “tax” he’s capable of making the term “state” mean state as in “Nation State” rather than as individual states within the “United States.” … We’ll soon know if he is still semantics deprived. I may even mail him a book: “Language in Thought and Action” by S I Hayakawa … so he can learn how written & spoken differences really are differences.

    I keep reading and hearing how we should look at the entirety of the ACA to determine what was meant by “state” ..e.g., “state exchanges.” The distinction seem pretty clear that it meant exchanges set up by individual states within the union of states. The unauthorized exception seems to be the setting up of federal exchanges where states chose not do so. Shouldn’t be a hard decision, but we’ll see….

  4. Nick Spinelli

    The server for Hillary’s email was in the Clinton home. Imagine all the porn on that bad boy!

    That’s one of the reason’s it was at home.

  5. Deflect bad press from the fat, Lesbian Queen. Wally mixes the Kool-Aid. Can the Lesbian Queen survive this? That’s the question. The Walker haters are doing “Look, squirrel.”

  6. Where was the server? Who set it up? What was Walker’s email address? Go ahead, list the answers.

    You can’t, because there was no secret email system, except in the fetid imaginations of those afflicted with WDS.

  7. Nonsense. Stop quoting absurd leftist websites. Walker did not have a “secret email system”, period.

    Find a court document that charges him with it, I challenge you. All those investigators, all those seized computers, no evidence whatsoever.

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