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.
http://www.jsonline.com/news/statepolitics/court-set-to-release-emails-documents-tied-to-ex-aide-to-scott-walker-b99208267z1-246128301.html?ipad=y
Emails link Scott Walker to secret email system.
on 1, March 4, 2015 at 3:43 pmPogo Hears a Who
We only have proof Hillary did so.
************************
Not so Pogo.
Here you go. Scott Walker’s secret internet system.
http://host.madison.com/news/local/govt-and-politics/former-county-administrator-i-helped-set-up-scott-walker-s/article_c5b51126-ef30-5ca8-a9df-7aa10fcc5981.html
We only have proof Hillary did so.
I think Roberts is going to break your heart all over again Pogo. I hope you don’t decide to go into deep mourning once again.
It’s a behavior we don’t need to see in a POTUS.
“…and decide that the laws really have no meaning.”
I am already there.
The US legal and regulatory schema is arbitrary and capricious, mendacious and corrupt.
From the the DOJ to a good chunk of SCOTUS.
“If Bush and Walker would go so far as to set up private and secret servers”
Assumes facts not in evidence.
In contrast, Hillary did so while serving as SOS.
@ Mike
I am afraid that you are right. However, the consequences of writing a bad law being erased by the contortions of the Supremes (without music no less) does not fix the problem of Congress writing unconstitutional laws, not reading or understanding the laws that they write.
When lawmakers make LAWS they can’t just pass those laws and then later on, without going through the proper procedures of repealing or amending, willy nilly change the meaning of the law. Merely because they don’t like the effect of their lawmaking, they feel that they can break or bypass the laws.
The consequences of these actions, where our laws do not mean what they say or can be interpreted any way that someone feels like it on any given day, will be that the ordinary citizen will lose all respect for the “letter of the law” and decide that the laws really have no meaning.
The lawmakers make bad laws, unconstitutional laws and the Supreme Court cleans up after them by finding umbras and penumbras to convert unconstitutional to constitutional. Trampling on States rights in the process.
I mean……why should WE obey the laws when the lawmakers don’t? Why should we obey ANY laws if we can get away with it. Like the IRS commissioner….we will obey the laws….whenever we can (or feel like it)
If Bush and Walker would go so far as to set up private and secret servers, what would they do IF they were to be POTUS? Secret servers and the Presidency? Nope, not from Clinton, Bush or Walker. That should pretty much exempt them from the nomination.
“So did Jeb Bush and Scott Walker.”
They weren’t federal government employees at the time, required by law to use an official gubmint address.
But you already knew that.
The Democrat talking points e-mail sure is reliable.
Pogo – the NYT article on this about the Democrats running for cover noted they they did not have lead time to find Republicans who had done the same thing. Oddly enough, the NYT article did not condemn Hillary for having only a private account that she ran all of her official email through. Somewhere I heard it went through the Rose Law Firm so it becomes protected there. Not sure that is true.
So did Jeb Bush and Scott Walker.
Scott Walker’s secret internet system.
http://host.madison.com/news/local/govt-and-politics/former-county-administrator-i-helped-set-up-scott-walker-s/article_c5b51126-ef30-5ca8-a9df-7aa10fcc5981.html
Those who suggest that the issue in this case is merely whether the law should be enforced as written are being overly simplistic. There are many rules developed over centuries concerned with the proper construction and interpretation of statutory language. This case involves the application of those rules to an extremely complex piece of legislation.
It is also a mistake to insist that the Court should not concern itself with the practical consequences of its decision. That concern will have an impact for at least two reasons. The first is obvious, the effects of an adverse decision on millions of people who have procured health insurance for the first time, the insurance companies who have underwritten that coverage and the non-profit institutions who provide the bulk of the health care in this country.
The second reason is the Court’s own reputation. More than either of the other two branches, the Court’s authority is largely derived from the respect shown by the public for its decisions, whether popular or not, based upon a fundamental commitment to the rule of law. We should not delude ourselves into thinking that the Court will invite chaos if it can be avoided.
For what it’s worth (I know, I know, it ain’t worth much), I predict that the Court will uphold the 4th Circuit in a narrowly tailored opinion which finds some ambiguity in the language and resolves it based upon congressional intent and deference to administrative interpretation.
And since I’ve already stuck my neck out, what the heck. Here’s the vote:
To affirm: Roberts, Ginsburg, Kagan, Sotomayor, Breyer and Kennedy.
To reverse: Scalia, Thomas and Alito.
The Clinton email scandal is getting worse. She had her own server in Chappaqua for the email account! Complete control over the archives. The Clinton sociopaths are so crooked and secretive I’m not sure if it’s more scary or creepy?
“HealthPocket found that in 2015 only 34% of the healthcare providers examined were listed as accepting Medicaid insurance. This represents a 21% decrease from the listings of Medicaid acceptance found in the 2013 data for the same categories of healthcare providers.
This news comes as we also learn that Medicaid and CHIP now cover a whopping 1-5 Americans. Because of Medicaid expansion under ObamaCare, millions previously ineligible due to lack of disability or higher income levels have been added to the welfare rolls.”
More are ‘covered’ but fewer have actual care.
An invisible blanket for the poor.
Look what the “stupidity of the American voters”, according to Gruber, voted for:
“There’s a real debate about what is affordable, and there’s no right answer here,” Gruber said in a talk that became a policy brief. “The problem is it starts to go hand in hand with the mandate; you can’t mandate insurance that’s not affordable.”
Cost controls, he said, could just come later, after everyone was covered. And one way to control costs, he explained, would be to tell patients “they can’t have something they want.”
“The kicker is the Democrats knew it, too, but publicly denied the facts all the way to the bill-signing ceremony and beyond. Honesty and openness were sacrificed for the sake of a bill that won’t work as promised and the country doesn’t even like.
As Gruber has acknowledged, ObamaCare was written in a tortured way, not for effectiveness but for passage. That’s not the way a representative government with constitutional limits should work.”
http://news.investors.com/ibd-editorials-obama-care/123114-732840-obamacare-affordable-care-act-unaffordable.htm
“It is not our job to protect the people from the consequences of their political choices.
—Chief Justice John Roberts, National Federation of Independent Business v. Sebelius, June 28, 2012”
http://www.heritage.org/research/reports/2014/04/four-years-of-obamacare-early-warnings-come-true
DBQ – another reason why some states rejected the Medicaid expansion is that the government is adding on debt at an unsustainable pace. Obamacare has added more debt than all of his predecessors combined. The logical conclusion is that there is only one outcome – financial collapse and reneg of financial promises. The government has been pretty free with its promises of funding. And the states would be crushed by the cost if the feds back out.
What rational person thought a bill that literally stacked up to 6 feet tall was a good idea?
Tackle the minuscule fraction of good in Obamacare one or two issues at a time. Pass individual bills one to two pages long, with laser focus on particular issues. Wait for adjustment. Pass the next bill. Phase in these changes a little at a time so we can gauge the result. No more adding in non sequiturs to bills. No more pork. No more Gruberese which makes it impenetrable.
As it stands, I highly recommend reading sections of the ACA for anyone experiencing insomnia.
DBQ:
I completely agree with you. Until Obamacare is repealed, it needs to be upheld exactly as written. Which means the employer mandate should hit everyone, now. And no more crony exemptions for big donors like the unions.
Let everyone experience the joy and wonder of Obamacare so that voters can make an informed decision in 2016.
Aridog – “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.”
Eek! When did that happen? What thread? How awful.
And there is zero chance that Hillary Clinton, a consummate politician and lawyer, could possibly be unaware of the rules regarding using private email accounts to conduct government business.
There is only one reason a politician would do this – to hide what they discuss from public or legal scrutiny.
Obamacare galvanized me politically. Sure, I had already evolved into a fiscal conservative, but there is no single political party with which I agree on all things. I never contributed to any political blogs.
It wasn’t until Obamacare passed and my family got financially squashed that I started howling about politics.
And I’m not the only one.
The question is if Liberals will sense their impending doom and make yet another illegal action to somehow soften the employer mandate, so they are not burned in effigy and thrown out of all local, state, and federal offices for 100 years.
Because if people were so upset about a teeny $25 payroll tax hike, imagine what they would say when they get hit with thousands upon thousands of dollars in increased premiums, deductibles, and other healthcare costs thanks to Obama, Pelosi, et al.