The 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
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. 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.
This is how these legislative messes linger – people are afraid of the consequences of rewinding them and starting over, so they leave an obviously flawed law in place.
That is not the way to run a country.
First it was “we have to pass the law to know what’s in it”, then there were all the lies, and now we hear that a law passed on lies must stand because people will lose their health insurance.
Obamacare health insurance is absolutely substandard, and unaffordable. There is mounting evidence that doctors do not accept these policies, because it amounts to a pay cut. All those “freebies” that were added on to every policy drove the premiums up into the stratosphere. The very reason why these court cases are so important is because if the federal exchanges lose their subsidies, people will know what the middle class already does: OBAMACARE IS NOT AFFORDABLE UNSUBSIDIZED. In the name of providing health insurance to the poor, we saddled the middle class with unsustainable premiums and deductibles. Are people even aware that the out of pocket caps do not include those high altitude premiums? That the tight drug formulary means that if your prescription is not covered, you have to pay out of pocket, and that counts neither towards your deductible nor your max cap?
Every time I call my health insurance company, they are so apologetic about Obamacare. Reps tell me they get yelled at all day long, poor things.
I would like to also add that health insurance is only one approach to health care, which should be our ultimate goal.
Instead of fixing what was wrong with insurance companies, Obamacare is a gift to them. It provides a captive customer pool, for one thing. But they will rue the day they cooperated with King Obama. Because obviously the trend will be that when the employer mandate hits, and everyone is experiencing Obamacare, we will have to choose between unwinding the law completely, or going with nationalized health care. Which would be a colossal mistake, in my opinion. When our government lies to us, wastes our money on websites that don’t work and lack security against hackers, and makes our healthcare unaffordable, why in the world would you give them even more control over our healthcare? But, some people are slow learners, at the expense of the rest of us.
Honestly, does the White House Admin just completely hate the middle class? Because it’s beyond me why Liberals keeps hammering us with higher and higher costs, and throwing up more and more hurdles to starting or running a business. Are they trying to knock out the middle class completely, which will widen the gap between rich and poor even further, so his party will have a self-manufactured platform of class warfare to run on?
I say “they” because I don’t really blame Obama. There is a long line of ideologically identical people waiting to take his place. The “You didn’t build it” mantra that hammers business owners. The tax-and-spend philosophy.
Obamacare, the gift that just keeps on giving.
Aridog, I can guarantee that nothing will happen to any of these criminals Lerner, Hillary or the heat of the EPA. In fact my money is on that Hill will be in the White House again. Why do you think the liberal rag The Times did a story on it now? It allows plenty of time for it all to be forgotten and if you bring it up in a year or more, you are just living in the past.
Warren…lacking a better place to comment on Hillary’s use of private email for official business, I have to say something is not right about the choice. As Sec of State she would have had an automatically assigned government email, heck I had two; one on “.mil” and one via the AKO system. Retired, I no longer have a CAC card nor the official VPN accounts, so I am very careful what I say via email while consulting. And yes, when active, I did occasionally use personal email accounts to discuss DOD and government official business, but always with a copy to address for my official email account…and never to handle sensitive or classified material…for that I had my government VPN and government issued laptop for use after hours and when traveling. The blather about how this or that procedure was “okay” just doesn’t cut it….it is v-e-r-y simple, she chose to use her private email account for all official business (if that in fact is the case?)…and that as I understand it is illegal. There just is no way she wasn’t provided with secure federal facilities and accounts.
In passing, I thank Professor Turley for cleaning up a plagiarists use of my “nick” (without avatar) here on this website with words I would never have used and that were essentially racist in nature. You see, I still utilize my personal account, and I have no sock puppets, for “official business” because I no longer have the CAC or VPN, but still consult and advise from time to time….and I still do NOT utilize it for anything FOUO classification or higher. There is this thing called the “Anti-Deficiency Act” that blocks consulting for gratis (…e.g., without charge) and I therefore must stay in bounds.
I am of the way that the Affordable health Care Act will be upheld.
@ Edward.
GOOD. Uphold it exactly as written. Exactly as written.
Elections have consequences and words have meaning. The letter of the law and the statutory language should be upheld. This should also apply to all of the other tweekings and twerkings that the Obama Administration has been doing to the law with the exemptions and ignoring of written deadlines.
Another issue that some of the States took into consideration in declining to expand Medicaid and bust their State Budgets, is the massive influx of Illegal Aliens who by and large end up on the State’s Medicaid and Welfare gravy train.
The Federal Government’s refusal to do anything about the invasion of the United States by illegals and the Administration’s actual encouragement of this lawlessness is obvious to anyone living in a border State.
Those States who are already groaning at the cost of subsidizing Illegals could see the handwriting on the wall and again….declined to commit economic seppuku with massive expansion of another costly welfare program.
The Executive Branch is entitled to argue its case to the Judicial Branch, but is wrong to do so upon any basis other than the merits. To pressure any members of the Court based purely upon fear is no different than the State’s regime forcing the Judicial Branch to the will of the Executive.
Not only did the ACA language clearly state that insurance purchased on an “exchange established by the State” would qualify for subsidies…..the law clearly defined the terms that it was using in the statutory language.
In addition Gruber and others who helped design the law, plainly and clearly stated that the wording to only allow the subsidies on State established exchanges was a carrot and club to force the States to participate. Force the States to expand Medicaid and accept, at a steep price. The forced expansion of Medicaid at the State level would have been extremely costly and even devastating to some State budgets…… http://www.economics21.org/commentary/expanding-medicaid-conflicting-incentives-facing-states
In the Roberts and SC decision to allow the ACA to go forward, they made a cruicial decision. “The court ruled the federal government can’t force states to participate in a major expansion of Medicaid or else risk losing existing Medicaid funds from Washington. That threat amounted to unconstitutional coercion.’ http://www.npr.org/2012/07/08/156466010/congress-big-stick-just-got-a-little-shorter
The Grubers and others who thought this threat, to lose existing Medicaid, would force the States to establish exchanges and force the States to take on the costly administrative burden of the ACA, were found wrong. The States dodged that bullet and didn’t open up exchanges.
However, the law had already been written and passed……so we could find out what was in it. It was too late to re-write it and the Democrats certainly didn’t want to bring the ACA back to Congress and open up that can of worms. So……now they are trying to pretend that they didn’t really mean it all along. They want to ignore the language of the law and try to get the Supreme Court to go along with this fantasy that the language doesn’t really mean what it says. That it should mean what they wish it to mean after the chaos of the States declining to commit economic seppuku.
So the question now is. DO we have laws in this Country that mean anything or do we just make it up as we go along depending on who is in charge and with shifting sands under our feet?
I hope that Roberts will remember and adhere to these two quotes from the last Supreme Court hearing of the ACA
“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
I have noted that there have been quite a few bill introductions that would require all Legislatures in both houses to read the bills that they will be asked to vote on. All have failed. Reason: I haven’t got the time to read all those ” D–m” bills. I have an election to win, in order to stay in office! How simple can one get!
I wonder if Hillary ever expressed a legal opinion of ACA as Secretary of State while using her private email account instead of using government email account?
The idiot, Nancy Pelosi, actually was prescient when she said, “We have to pass it to know what’s in it.” Well, when read, the ACA turns out to be a Constitution shredder. Perfect, for the most lawless president.
JT: Congress needs to burn a bridge in Saint Louis because it seems to be a problem.
Beldar here: if you inquired about the BarkinDog please look on the FAA article and my comment today down there.
So the basic question comes down to…will the plain reading of the law that everyone can understand be law, or will the whims of what the President want be the rule of law?
Seems like a slam dunk to me. The Dictator always wins, at least until the next revolution.
Reblogged this on pundit from another planet.
It’s just so strange to be seeing a President, who we are constantly reminded was a Constitutional Law professor, arguing that strict adherence to the law should take a back seat to public policy considerations. Frankly the court should affirm the DC circuits ruling on almost those grounds – the court is not an appropriate venue to make public policy decisions. The law is clear if you give it a plain reading. “Each State” doesn’t give much room for a reasonable determination that Congress didn’t mean the 50 states, not the federal government.
The doo-doo of ACA just keeps getting thicker and thicker as we wade through it. It is hard to keep up with it all. If only we had a commonsense law that Congress had to read bills before they vote to make them law.
Presidents have been known to put unusual pressure on the Supreme Court. FDR threatened to pack the court with new members to get his programs through. They saw the light.
However, this administration is not without playing every nasty card they have in their deck. They have played all of them and created some new ones.
“Obviously, the ramifications of a legal interpretation should not influence the Court but clearly some believe it may factor into the analysis.”
I wish you the best, but I am certain Dread Justice Roberts will gerrymander the wording to make the law do what they want rather than what it actually says.
You fight the good fight for the rule of law, even though I believe it is a losing battle.