Constitutional Law, Courts, Media, Politics, Society, Supreme Court

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. Max – I only mentioned the NSA tongue-in-cheek because, like J Edgar Hoover, they are on everyone’s phone . . . and computer.

    There are many ways to recover the data.

  2. I often wish that we could just throw all career, slick politicians and their pork out of office, and start afresh with people who held normal careers. Real representatives of America.

    I am quite dissatisfied with the “experts on theory” academics who seem oblivious to the needs of small businesses, as well as the poor, non-government employees, and the entire middle class. They’re out of touch with just about everyone except government employees.

  3. Actually, the verbiage was an attempt to force states to set up exchanges. The wording was deliberate. It was not a “gotcha” poison pill.

    Max – the apple cart was built the first time two primitive people got together and decided to form a “society”. Who is the bride and who is the mother in law in this scenario?

    Personally, I do not think politics are relevant to the question of whether something is right or wrong. As stated before, I have no problem with investigating former SOS’ use of private emails. In fact, I would love to get Lois Lerner and other IRS officials in that net, too. The distinction, on the surface at least, between Colin Powel and Hillary is that Clinton setting up her own private server appears to show an intent to circumvent transparency. Colin had no such private server that I am aware of. If his private emails were indeed used for personal correspondence, housekeeping, probably some guy jokes, and non-classified info, then an investigation will confirm that. If HRC used her personal email to discuss how pleased she is that she got away with Whitewater, lying about a whole bunch of things, and defending pedophiles, then an investigation will uncover that, too.

  4. Annie, Karen S.
    The answer to the dilemma is: The apple cart was built in 2009.

    It appears the the 2016 race will be filled with candidates… for the Pen.

  5. Karen S.
    “I’m pretty sure the NSA can and should accomplish this.”
    = = =
    The NSA wasn’t organized and devised to be the data collection center of the State Department for the world… or was it? And I’m sure they always get proper warrants before searches of US e-mail?

    I don’t feel comfortable using the NSA as the fallback for data retention. Pretty soon, it’s Orwells 1984. Hell, we ARE almost there now. Don’t encourage it…

  7. Max, yep. I can only imagine a debate between these two if the topic of secret servers comes up in the debate. 😝

  9. Karen S.
    I’m merely saying that when the brides mother shows up in a white dress at the wedding… Her complaints about the wedding gown are moot. Or, if you’re gonna sling mud, make sure it’s not from your own pig pen. Or, maybe this, protocol established little attention to pesky details like which e-mail account to use, or why have one at all…

    Now, don’t get me wrong here. I think Hillary is up to Hillary tricks again. Stashing info that other might want someday. Classic Clintonian politics is to create the image you want other people to see. Most politicos operate this way. Thus the issue with transparency and a series of Administrations building walls of secrets.

  10. Scott Walker may be a grape, but he’s a grape that’s going to be running for President. He had a secret internet service.

    Where is DBQ to yell about us being off topic again?

  11. Mike A:

    “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.”

    What, that it’s unaffordable? Even Gruber said it is unaffordable for the unsubsidized. See my link above.

    If it’s not affordable for the middle class, how can this law stand? It’s not just the poor who would find it unaffordable without subsidies. It’s the middle class, too.

    Which should shut the book on this disastrous mistake.

  12. What’s wrong with Rice not using email?

    Who’s saying there should be a double standard?

    Politicians are only honest as long as we hold them accountable. We don’t seem to require them to be very honest, and that is our fault. And the “yeah but look what he did” is no excuse.

  13. Why, oh why, do the media rush to excuse wrongdoing by Liberals?

    If Bush did something like this, would there be Liberal news articles saying, “Yeah, but, so did this other guy. . .”

    Personally, I thought wrong is wrong. I can’t imagine a judge throwing out a murder trial because “some other guy killed someone too.”

    Max – from your own article about Colin Powell:

    “He was not aware of any restrictions nor does he recall being made aware of any over the four years he served at State. He sent emails to his staff generally via their State Department email addresses. These emails should be on the State Department computers. He might have occasionally used personal email addresses, as he did when emailing to family and friends.
    He did not take any hard copies of emails with him when he left office and has no record of the emails. They were all unclassified and mostly of a housekeeping nature. He came into office encouraging the use of emails as a way of getting the staff to embrace the new 21st information world.
    The account he used has been closed for a number of years. In light of new policies published in 2013 and 2014 and a December 2014 letter from the State Department advising us of these polices, we will be working with the department to see if any additional action is required on our part.”

    Apparently, he did not have a secret server. Clearly, it is a good idea to investigate any personal emails for wrongdoing. I’m pretty sure the NSA can and should accomplish this. Shining the light of public scrutiny has a disinfecting effect.

    How does this compare with Hillary Clinton having her own server, and conducting business (as compared to “housekeeping”) on her private account? Sound a little like “losing” the Whitewater files, doesn’t it?

    DBQ – you are absolutely right. There is plenty of evidence on record that lawmakers had not read the law, and did not know what was in it. Trying to backpedal and ascertain their “intent” is bananas.

  15. p.s. Annie,
    Remember the motto:
    It’s never when my team did it.
    Because that’s what this gnashing of teeth is about concerning Hillary’s use of e-mail. Powell used his personal e-mail. Rice didn’t use e-mail, if ever.

    Pogo? Don’t forget to rake Colin and Condi over your coals, too.

  16. Karen S.
    I agree that it is rediculous for lawmakers to not read the bills they vote on. However I would add, it is equally as rediculous if not more so, that constituents reelect the illiterate. Don’t you?

  18. Thank you Mike. I understand being busy and distracted. I’m retired and waiting for a phone call for my husband’s business, so I’m pretty much at loose ends right now.

  19. DBQ:

    Sorry. I’m at work. I have a hard time formulating complicated thoughts on the run, much less expressing them with anything resembling precision.

  20. @ Mike

    Well, that was a pretty non responsive response to my points regarding the subsidies and forced Medicaid expansion. Thanks. It was a nice discussion for a few moments.

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