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.
You should see Ruth Bader in her poodle skirt, and Nino in his leather jacket and shades on throw back Thursday.
Mike is correct, they will decide it’s called “Affordable” because it will be opposite day @ SCOTUS. Little known fact, they have opposite day, throw back Thursdays, Retro Day, and many other silly days @ SCOTUS.
DBQ:
My belief is that at the end of the day, the Court will conclude that there’s a reason the law is called the “Affordable” Care Act.
on 1, March 4, 2015 at 5:21 pmInga (Annie)
It’s ludicrous to think that the authorsof the law thought for one minute that poor and middle class people in states that declined the exchanges would be able to afford the insurance on their own.
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DBQ said…
“Since they didn’t read the law, how would we know what they thought. They had to pass it to find out what was in it. Well……now they know :-)”
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The authors of the law not only read the law, they WROTE it.
Annie wrote: “The authors of the law not only read the law, they WROTE it.”
What evidence do you have of that? I doubt that any of the authors read the entire bill before it was passed. Not a single person. There simply was not enough time. Welcome to the electronic age with staff doing all the work.
It’s ludicrous to think that the authors of the law thought for one minute that poor and middle class people in states that declined the exchanges would be able to afford the insurance on their own.
Since they didn’t read the law, how would we know what they thought. They had to pass it to find out what was in it. Well……now they know 🙂
@ Mike. They did pass a law with a gotcha clause in a way. The forced Medicaid expansion on the States.. Since that “carrot /stick” part of the law in making the States expand Medicaid or lose their existing Medicaid funds was struck down by the Supreme Court in the last go-round….even if they DID read the law, they didn’t expect to have that coercive part removed.
Once that was removed/struck down it changed everything.
Now the remaining part, which is an unintended gotcha, is the subsidies on the exchanges “established by the State(s)” and no mention whatsoever in the law in a subsidy being available on a Federally established exchange. They passed a poorly written and not thought out bill. The removal of the Medicaid expansion coercion allowed the MAJORITY of the States to decline to play the game. Now the government is flumoxed.
In addition, the change to allow Federal exchanges to have the subsidies is not even a legal part OF the law and is instead an interpretation by some unelected bureaucrat at the IRS.
Bad law…..bad results. I just hope that a bad Supreme Court decision won’t further put us down the road of shredding the Constitution and destroying the balance of powers.
Excellent analysis DBQ.
DBQ wrote: “The removal of the Medicaid expansion coercion allowed the MAJORITY of the States to decline to play the game. Now the government is flumoxed.”
Honesty would have led them to go back and rewrite, but they knew after the defeat in the Supreme Court, they would have never gotten the ACA to pass again. They barely got the votes to pass it the first time and had numerous backroom deals to do it.
Also, the media had a hand in this because they were so focused upon the individual mandate that all the headlines said that the Supreme Court upheld the ACA, when, in fact, they found part of it unconstitutional. That fact was merely a footnote in fine print below the news that the SCOTUS declared the law constitutional.
We are a country no longer under the rule of law.
It’s ludicrous to think that the authors of the law thought for one minute that poor and middle class people in states that declined the exchanges would be able to afford the insurance on their own. Somebody is playing fast and loose with words and hoping the SC will vote as a political body.
DBQ:
The problem with the analysis you cite is that it relies upon the assumption that Congress intentionally passed legislation containing a “gotcha” clause capable of sabotaging the entire exchange scheme. Although I think Congress can act quite stupidly, I don’t buy that argument in this instance. It would be nonsensical to base entitlement to tax subsidies on whether the recipient purchases insurance through an exchange put together by his or her state of residence or by the federal government.
Mike
In essence, much legislation is like an outline, with agencies expected to fill in the blanks. I regard that practice as an unconstitutional delegation of legislative authority to the executive branch.
I very much agree with you on this. Perhaps if the legislative were held more accountable they would be less sloppy, lazy or willing to delegate their power to unelected bureaucracies. The Congress members are elected to do a job and not to just delegate it away to underlings and career functionaries.
From the Scotusbolg today “That leaves Justice Kennedy. In one sense, he sort of leaned toward the idea that the language of the ACA as it deals with the subsidy system and the exchanges might be clear enough that the Court would have no choice but to rule against the government, and find that Congress made subsidies available only on marketplaces run by the state governments.
But in a broader sense, he displayed a deep concern — entirely consistent with his long-held view that the Court owes utmost respect to the semi-sovereign states and their role under what he calls the Constitution’s “design” — that Congress should ordinarily not be allowed to coerce the states into doing something that Congress wants.
It does appear that in some quarters there is the thought that the law, as written…..requiring the states to be the ones to administer exchanges (or else no subisidies) is a coercive and unconstitutional part of the ACA.
Frankly. I think the whole thing is rife with problems and is an unworkable piece of donkey-doo. It should at the very least be re worked if not totally scrapped for a plan that is better thought out and that will be functional. Alas…..I believe that is too much to hope for 🙂
Nice job hijacking the thread there Nick.
Burwell’s letter is no worse than the editorial by Hatch, et al pretending that they will have a plan if the plaintiffs prevail. That was entirely directed at the SCOTUS to reassure them that it’s okay to dismantle the subsidies. Scalia clearly noticed and commented on it somewhat directly.
Hmmm, who brought up Hillary Clinton and emails, taking the thread off topic?
on 1, March 4, 2015 at 3:19 pmNick Spinelli
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?
DBQ:
I understand your argument. Technically, of course, this case is not about constitutionality, but about statutory construction (although an interesting constitutional question might arise should the Court determine that the tax incentives are only available to persons enrolled through a state-created exchange).
I have long believed that Congress is very sloppy and grants too much rule-making authority to various agencies. In essence, much legislation is like an outline, with agencies expected to fill in the blanks. I regard that practice as an unconstitutional delegation of legislative authority to the executive branch.
Cast on 62 stitches
1: Knit across
2: Purl across
3-4: repeat rows 1 & 2
5: k2tog across the row (31 sts)
6: Purl across
7: k1, *yo, k2tog; repeat from * to end of row
8: Purl across
9-11: Knit across
12: k8, p15, k8
13: and remaining odd numbered rows; knit across
14: k8, p7, k1, p7, k8
16: k8, p6, k3, p6, k8
18, 20, and 22: k8, p5, k2, p1, k2, p5, k8
24 & 26: k8, p6, k3, p6, k8
28: k8, p5, k2, p1, k2, p5, k8
30: k8, p4, k2, p3, k2, p4, k8
32: k8, p3, k2, p5, k2, p3, k8
34: k8, p2, k2, p7, k2, p2, k8
36: k8, p15, k8
37-39: knit across
Bind off
Weave yarn in and out on the bottom, then draw up tightly for a gathered bottom. Sew up back seam. Either crochet a chain or use a ribbon to weave in and out of the eyelets at the top.. Insert a bar of soap, and tie the ribbon into a bow
What?
Since we are now so completely and hopelessly off topic of the Supreme Court reviewing the ACA and the issue of subsidies…..I thought I might offer something constructive instead of the same old partisan bickering back and forth by the same characters.
A knitted sack to put soap in and use as a washcloth. Tidy, thrifty and useful.
Ha ha ha. Good luck with that.
Please, spend lots of Democrat money on more investigation.
The case hasn’t been closed Pogo. John Doe 2 is still ongoing.
http://www.sourcewatch.org/index.php/Scott_Walker
The courts saw nothing wrong with Walker using a separate e-mail account to conduct GOP business, away from Democrat prying eyes.
Again Pogo, if you don’t see anything wrong with this level of secrecy, you have no business throwing stones, because you and Republicans live in a glass house.
Walker’s email was only a ‘secret’ from Democrats.
Hillary’s violated the law.
He wasn’t required by Milwaukee or the State of Wisconsin (in 1998) to use the county’s Information Management Services Division.
You know very well Walker won the fight, that he was never found to be in the wrong for using a separate email system to respond to respond to political emails.
In contrast, documents released in DEC 2014 showed that WI “State Government Accountability Board staff and district attorneys in a partisan John Doe probe used private Gmail accounts to communicate offline about their investigation into 29 conservative organizations.”
They used hundreds of thousands of dollars of WI government resources to discredit and jail political enemies.