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

  2. Dems are running from the Clintons like they were rapists. The number of Dems fed up w/ those crooks/liars/sociopaths far exceed those enamored w/ them. And many so called enamored are really just fearful of them. Time for the Dems to come up w/ someone else. How about Crazy Joe Biden? Or spit mouth Bernie Sanders. He’ll need one of those dentist suction thingys if he runs. Then there’s always Betsy “Cherokee Princess” Warren. Pretty lame field. Actually, neither party have anyone that sends a thrill up my leg.

  3. 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.

    Lord love a duck, such stupidity. Scott Walker did not have a secret email system or server, period. One of his aides was found guilty of using HER personal email account to send a political email to somneone else. And the only reason why she was found guilty was tht she had not yet stepped outside of her office door before she hit send. That’s all there was, period.

    Now lefties who are infected with Walker Derangement Syndrome read all sorts of articles on lefty websites that simply lie about this, then they cite it as being true. It isn’t; it’s total bullcrap.

    What the lefty websites won’t tell you is the Wisconsin’s Government Accountability Board – a bastion of leftist activists – set up and used its own secret and illegal email system to keep its communications out of public scrutiny! Effing hypocrites.

    Here is an article the explains it clearly.

    For the slow-witted, I’ll say it again: Scot Walker did not have a secret email system, period.

  4. Karen S asked …

    Aridog – have you been following the EPA on the sudden redefinition of “waterway” to include any topography that essentially makes rainwater fall in a certain direction, even if it’s dry most of the year?

    Yes, I’ve followed it moderately, and been amused at how once the US Army Corps of Engineers (USACE) were the bad guys on “waterway” issues, with occasional State interference as well, and now it is the EPA. Guess they decided it was new land, literally, for them to “manage” … e.g., take over from USACE. USACE normally only concerns itself with “navigable waterways” which has expanded to be almost any creek you could float a log down lately, but even that is not enough for the EPA. I can assure you that in USACE it is the civilian bureaucrats, not the military, who expanded the scope, and within the EPA, it has to be the civilian bureaucrats….’cuz that’s what & who they are top to bottom.

    Using the current EPA attempt to redefine “waterway” they potentially could take over over half of the rocky mountain states alone….where snow melt run off creeks and gorges are every where, and without a shred of wetlands vegetation.

    BTW…there are certain and particular “marker” vegetations that define a “wetland”, whether wet or dry at any given time, and perhaps Chickelit or Chip Ahoy could expand on the topic of what those markers are in reality.

    Karen S said …

    I wouldn’t care which email address anyone in government used if they were all tracked and backed up.

    Based upon my experience I’d not bet that some government office hasn’t already hacked her servers and copied everything they need. She did this for way too long and someone somewhere had to have noticed and ratted her out. Now whether they reveal this is another story….since it is nearly impossible for her to not have discussed classified information on her personal server, over a period of 4 years as Sec of State, she broke the law and there are always watchdogs looking for that kind of malfeasance. These days I nearly stand on my head to avoid such an impropriety in consulting…because I know that someone somewhere is looking.

  5. The SCOTUS is engaged in the “high crime” of “overreach” putting America at a constitutional “tipping point.”

    There is only ONE king. And it isn’t the cavalier, arrogant and elitist SCOTUS. The Founders wrote in simple, clear phrases. The egoistically superior SCOTUS believes it can obfuscate and prestidigitate by introducing linguistic complexity. Decisions should be no longer than the applicable section of the Preamble, Constitution of Bill of Rights. All law that imposes bizarre concepts and principles of the Communist Manifesto should have been struck down long, long ago – control of the means of production, redistribution of wealth in any form and foreign offensive religious wars wherein the “ends justify the means.”

    The King was replaced by the Congress and Senate. The legislative branch represents the people, the sovereign, the new king. The new king, the people, give the orders now. Not the SCOTUS.

    Oh hell yeah. The SCOTUS is at the top of an ideological and political branch; not the judicial branch.

    The SCOTUS must be impeached for engaging in subjective, ideological and political discussions related to adopted legislation.

    Ideology, morality and political considerations are not the purview of the SCOTUS. The objective LAW is the purview of the SCOTUS.




    Legislative. – Writing.

    Executive. – Implementation.

    Judicial. – Assurance that actions comport with law.

  6. david – Obamacare stacks up to over 6 feet, literally. Congress is on record that they didn’t read it. Do people actually think all of the authors are intimately familiar with a 6 feet tall stack of tortuously written legislation? Are they all savants?

    I’ve read parts of the ACA. I highly recommend it for anyone having trouble falling asleep.

  7. Aridog – have you been following the EPA on the sudden redefinition of “waterway” to include any topography that essentially makes rainwater fall in a certain direction, even if it’s dry most of the year? That basically makes a whole lot of land subject to the onerous rules governing waterways.

  8. Oh, and on the earlier topic of Hillary’s email:

    The main concern is transparency. We cannot allow government officials to use private email in order to hide correspondence, such as for a subpoena. There are backup methods (which the IRS claimed not to enact) for government electronic correspondence.

    I wouldn’t care which email address anyone in government used if they were all tracked and backed up.

    The difficulty also lies with that private server, which is the red flag, in my opinion. Is there any way to know if the pages she’s turned over to investigators are all of them, since she had control of the server? What about emails she deleted? Who knows. Perhaps she deleted anything incriminating, and there’s nothing anyone can do about it, so it will all come to nothing.

    Past history predicts future. What did she do when she was subpoenaed for White Water? She “lost” the files, which her secretary found on a coffee table with only Hillary’s fingerprints on them. She’s been caught lying so very many times. I don’t know why she keeps getting a free pass.

    So I expect her to behave in exactly the same way.

  9. Max:

    Karen S.
    The NSA is on every device because they stole the keys to gain entry…
    We should try that excuse next time we’re before a judge for trespassing:
    “Your honor, it’s legal because I stole the keys so that I could have possession”

    Heck, this does set a precedent!

    I think the only known intent of the ACA that the court will have to go on is Gruber’s admission that it was deliberately written in tortuous language to take advantage of the stupidity of the American voter, because it would never pass on its merits.

    The should throw the whole thing out based on that fact alone.

    This violates the very principles on which our country was built. They’ve admitted to deliberately lying to us to get this through, so throw it out, and start over. Vote on one small bill at a time, 2 pages max, that zero in on very specific issues in health care and the insurance industry that need to be addressed.

  10. Mike Appleton said … [a true buried gem in this thread]

    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.

    That hits the nail on the head. Absolutely. Vague law makes for some very onerous rules & regulations. In my time with the Army and DOD I was never amazed to read a few vague lines of legislation that morphed in to several hundred pages of “regulations” because it could…simple as that. In my experience the EPA was the most “artistic” at this endeavor.

  11. Professor Turley, I really don’t understand how you can seemingly ignore Chevron v. NRDC in your position…

  12. “Exactly what jurisprudential theory do you embrace?”

    Theory? Are you implying the Court should put “ramifications” as precedence before the law? I don’t want to live in a society where the rule of law is subordinate to anything. That’s exactly what we have going on right now and it’s ripping this country apart.

  13. “Obviously, the ramifications of a legal interpretation should not influence the Court but clearly some believe it may factor into the analysis.” You owe your readers an explication of this proposition. Exactly what jurisprudential theory do you embrace?

  14. “Suffice to say that Obamacare’s exchanges are built on the idea of cooperative federalism: the federal government, unable to simply commandeer state agencies, invites states to implement federal policies in return for federal funding or favorable regulatory treatment.

    States carry out a great many federal policies and programs using this scheme, like Medicaid, Common Core, and a host of environmental regulations. Because Obamacare meddles so much with health insurance markets, which states traditionally regulated, it relies on the practice of cooperative federalism to an astonishing degree. Congress had hoped to induce states to cooperate by making subsidies contingent on states setting up their own exchanges—a policy proposition that, like Medicaid expansion, could bring millions or even billions of federal dollars into a state. At least, that’s what the King challengers contend.”

  15. Inga: can you post a photo of John Roberts on the toilet paper? We would like to make that into a poster.

  16. To Inga (Annie) You posting of the Scott Tissue photo on the other article was wonderful. I was wondering if you could create one of those for Mitch McConnell.
    On another matter. Hillary’s email would not be secure just because it was the
    state Department system. In fact a clever user would hide outside the system. The State Department still sends Diplomatic “Pouches” by airplane to embassies. No email is really safe. Ask the NSA.

    On the NSA: no word to us from BarkinDog. They have not been here to steal my Dogalogue Machine. We have several and they are scattered. I read Beldar’s comments. The house in Ferguson BarkinDog’s half blind guy goes to is near Calverton Park and I cant say the address. Not directly on Hudson Road. Both half blind guy and BarkinDog lived in Ferguson before–BarkinDog
    in a prior life as a human. He is a dog. He can swim. Four legs good, two legs baaaad.

  17. Karen S.
    The NSA is on every device because they stole the keys to gain entry…
    We should try that excuse next time we’re before a judge for trespassing:
    “Your honor, it’s legal because I stole the keys so that I could have possession”

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