In July, two Republican judges on the United States Court of Appeals for the District of Columbia Circuit handed down a decision defunding much of the Affordable Care Act (ACA). This effort to implement Sen. Ted Cruz’s (R-TX) top policy priority from the bench was withdrawn on Thursday by the DC Circuit, and the case will be reheard by the full court — a panel that will most likely include 13 judges. In practical terms, this means that July’s judgment cutting off subsidies to consumers who buy insurance plans in federally-operated health exchanges is no more. It has ceased to be. It is, in fact, an ex-judgment.
The reason why this matters is because the plaintiffs in this lawsuit, known as Halbig v. Burwell, are hustling to try to convince the GOP-dominated Supreme Court to hear this case, where they no doubt believe that they have a greater chance of succeeding than in the DC Circuit, as a majority of the active judges in the DC Circuit are Democrats. The Supreme Court takes only a tiny fraction of the cases brought to their attention by parties who lost in a lower court — a study of the Court’s 2005 term, for example, found that the justices granted a full argument to only 78 of the 8,517 petitions seeking the high Court’s review that term. The justices, however, are particularly likely to hear cases where two federal appeals courts disagree about the same question of law.
Two hours after the divided DC Circuit panel released its opinion attempted to defund Obamacare, a unanimous panel of the Fourth Circuit upheld the health subsidies that are at issue in Halbig. Thus, so long as both decisions remained in effect, Supreme Court review was very likely. Now that the full DC Circuit has vacated the two Republican judges’ July judgement, Supreme Court review is much less likely.
Although it is possible that the full DC Circuit could agree with the two judges who voted to cut off health subsidies to millions of Americans, this outcome is unlikely. The plaintiffs’ arguments in this case are weak and are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.
The litigants seeking to undermine Obamacare through this lawsuit — Oklahoma Attorney General Scott Pruitt (R), who filed a brief supporting the plaintiffs in this case, admitted in a Wall Street Journal op-ed that the purpose of this lawsuit is to cause “the structure of the ACA” to “crumble” — waged a two front effort trying to convince the full DC Circuit not to vacate their two GOP colleagues’ decision. The first half of this effort was a brief the plaintiffs filed with in the DC Circuit urging the full court to give the case a miss — although the argument raised in this brief is rather unusual. In essence, it broke down to three claims:
- This case is really important. And potentially very disruptive. According to the Halbig plaintiffs, “continued uncertainty” over whether Obamacare will be defunded “is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending.”
- If the full DC Circuit agreed to hear the case, however, that “would cause delay without providing any certainty,” because the Supreme Court may ultimately decide to take the case.
- Thus, the DC Circuit must not near this case, and it must “proceed immediately” to a “final resolution by the Supreme Court.”
On the surface, this argument may have some appeal, but it collapses upon a fairly minimal amount of scrutiny. It would indeed be disruptive if much of the Affordable Care Act were defunded, and the existence of this lawsuit does raise some uncertainty over whether or not that will happen. It would be even more disruptive, however, if President Obama were deposed because the Supreme Court held that he was born in Kenya, or if the federal tax code were held unconstitutional, or if people could immunize themselves from the law by declaring themselves “sovereign citizens.” If the mere fact that a plaintiff raises a potentially disruptive legal argument were grounds for removing all obstacles to immediate Supreme Court review, then the Court’s docket would be clogged with cases brought by birthers, tax protesters and sovereign citizens.
The reason why this doesn’t happen is that the justices typically use the lower courts as a mechanism to screen the few cases raising issues that are difficult enough to warrant Supreme Court review from the vast bulk of cases that do not. This is one reason why the justices tend to hear cases where two courts of appeals disagree — because that disagreement is a sign that the case is sufficiently challenging that it requires a definitive ruling from the nation’s highest Court. When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view.
Perhaps recognizing that their legal arguments against further DC Circuit review were not likely to carry the day, Obamacare’s opponents turned to the conservative press to litigate their case in the media. A full hearing by a federal appeals court, what is known as an “en banc” hearing, is an unusual proceeding. But the Federal Rules of Appellate Procedure provide for en banc review when a case “involves a question of exceptional importance.” The plaintiffs in this case admit that “[t]here is no doubt that this case is of great national importance” in their most recent brief to the court — so they actually admit that this case warrantsen banc review.
Additionally, the official commentary on the federal rule dealing with en banc hearings explains that “[i]ntercircuit conflict is cited as one reason for asserting that a proceeding involves a question of ‘exceptional importance,’” so that is a second reason why this case was a prime candidate for en banc review.
Yet you would never guess these facts if you read the conservative Wall Street Journal’s opinion page, which claims that “if the D.C. Circuit rehears the case en banc, it would be a sharp break from history.” Nor would you learn it from the National Review, which suggests that “the recent D.C. Circuit panel decision on Obamacare exchange subsidies in Halbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard for en banc review.” Or if you read the Volokh Conspiracy, a popular libertarian legal blog read by many judges and their law clerks, which claims that “the bar on en banc rehearing in the D.C. Circuit has been higher than the bar for certiorari in the Supreme Court.”
The subject of how a federal appeals court should handle the purely discretionary question of whether or not they wish to rehear a particular case rarely makes national headlines. Nor do opinion writers of any kind normally dive into arcane rules of federal appellate procedure. It is difficult to read the conservative media’s protests regarding en banc review as anything other than an attempt to paint the court’s decision to rehear the case as a partisan decision — rather than what it is, a decision that is clearly consistent with the federal rules governing these circumstances. Indeed, the Wall Street Journal op-ed quoted above it quite explicit in its claim that a decision to grant an en banc rehearing would be a partisan decision — “Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality.”
Now that the DC Circuit has ignored these attempts to scare them off with accusations of partisanship, this case no longer meets the usual criteria for Supreme Court review.
Here is what Greve said at a 2010 conference hosted by the conservative American Enterprise Institute, where Greve is an adjunct scholar, as The New York Times's Linda Greenhouse reported this week:“This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.”
The quote seems particularly revealing in the wake of the Halbig lawsuit, which most dismissed as a legal long shot until a federal appeals court ruled in its favor last month. It could now head to the Supreme Court, putting the law’s fate in the hands of the nation’s highest court for the second time since its passage.
It was considered a long shot because almost everybody who was there at the time — reporters, legislators and accountants — agreed that the rationale behind the lawsuit was absurd. The challengers argued that Congress had always meant to prohibit subsidies on the federal exchange, which would now strip more than 4 million people of financial help. The evidence — aside from some admittedly poor drafting — seemed negligible to non-existent in many observers’ eyes.
Those advancing the lawsuit, and some of their allies in the conservative media, have contorted their own understanding of the law into something that seems unrecognizable to those who spent months creating and covering it. It has left a number of liberal commentators baffled. But in the context of Greve’s professed vendetta against Obamacare, it makes a bit more sense.
One other comment from Greve during that 2010 panel seems particularly prescient. Back then, the individual mandate was the top legal target for those seeking to stop Obamacare. But Greve encouraged opponents, even before the Supreme Court upheld the mandate in 2012, to focus on “bits and pieces” of the law to stop it. And now, what many regard as a typo or poor drafting threatens to undo Obamacare.
"I think this is the right way to go," Greve said, "to concentrate on bits and pieces of this law beyond the mandate."
h/t: Dylan Scott at TPM
Have you noticed that Obamacare hasn’t been the big campaign boost wingers were hoping for? Like it or not, it’s not 2010 all over again, at least not with Obamacare leading their wave midterms.
It turns out people actually like Obamacare as long as you don’t call it that. Don’t call it the Affordable Care Act, either. But if you ask them about whether they like getting health insurance at subsidized rates, you get overwhelming approval. Ask them about whether they’re glad there are no more pre-existing conditions exclusions and they like that too.
That sad fact of life means Scott Brown’s entire reason for running for office in New Hampshire is a solid bust. Polling has him way behind Jeanne Shaheen, Tea Party groups aren’t really active in New Hampshire, and he’s on his way to remaining a former Senator from Massachusetts.
But wait! There’s a knight in shining armor out there. Roger Ailes, realizing Brown is probably doomed, called for an hour-long special on Obamacare, featuring…New Hampshire! No mere coincidence, that.
Fox News basically handed Scott Brown an hour-long free TV ad, not to mention all the promos their hosts had to do pimping the special.
Fake "Christian" Dave Daubenmire: 'A Christian Who Votes For A Democrat Maybe Isn't Really A Christian'
In his most recent video update, “Coach” Dave Daubenmire asks: “Can a Christian vote for a Democrat?”
Unsurprisingly, his answer is no, as Democrats “have become the party of death” thanks to support for legal abortion and the “deathstyle” of homosexuality.
“Did you know that when you support Obamacare you support the medical care of those who are engaged in self-destructive behaviors, including male-on-male sodomy?” he asked.
“Who is the greatest perpetrators of homosexual rights and homosexual marriage?” he said. “You got it. The Democratic party.”
So, he concludes, “a Christian who votes for a democrat maybe isn’t really a Christian.”
Earth to Dave Daubenmire: it’s people like you and not people who vote for Democrats that are the phony “Christians.”
H/T: Miranda Blue at RWW
This won’t surprise anyone who’s been following Obamacare’s latest legal battle, but the case just got one step closer to the US Supreme Court. Again. The most recent legal challenge centers on…
This won’t surprise anyone who’s been following Obamacare’s latest legal battle, but the case just got one step closer to the US Supreme Court. Again.
The most recent legal challenge centers on the subsidies available to people newly insured on state insurance exchanges. The plaintiffs argue that, based on the plain text of the law, Congress only authorized subsidies for state-established exchanges and that subsidies shouldn’t be available in the 36 states with federal exchanges. The federal government vehemently disagrees.
The plaintiffs in King v. Burwell, the case that was decided by the Fourth Circuit earlier this month, have asked the Supreme Court to hear their case, CNBC reports. The Fourth Circuit ruling went in favor of the government; the unanimous opinion said that subsidies should be available to residents of all states, based on their best reading of the law.
It’s not clear whether the high court will take up the case. Four justices have to agree to hear it, and they may wish to wait until Halbig, a related case, has fully played out.
Unlike King, the government lost in Halbig. There, the three-person panel of DC Circuit judges held that subsidies are illegal in the 36 states where the federal government runs health insurance exchanges. But the government plans to ask the entire DC Circuit — eleven judges in total — to review the decision “en banc”. Because the full DC Circuit skews liberal, observers expect that the Halbig decision will be reversed during en banc review. That probably won’t happen until early fall.
The King plaintiffs decided to skip an en banc petition.
By skipping an en banc petition, the King plaintiffs hope to get the Supreme Court to hear their case this term.— Nicholas Bagley (@nicholas_bagley)July 31, 2014
The justices may wish to wait until Halbig’s en banc review has been resolved before taking up one of the subsidy challenges. If they wait, that could push the timeline on a Supreme Court hearing back by a full year.
Alternatively, the Supreme Court could decide not to hear any of these challenges.
The Court will decide sometime this fall whether or not to hear King. If they do decide to hear the case, oral arguments would happen this winter and a final ruling would be expected sometime next spring.
Source: Adrianna McIntyre for Vox
House Republicans officially gave Speaker John Boehner (R-OH) their seal of approval on Wednesday to sue President Barack Obama, marking the first time in U.S. history that a chamber of Congress has endorsed a lawsuit against a president. The House adopted the resolution by a vote of 225-201. Five Republicans and all Democrats voted against the measure.
The resolution authorizes Boehner to challenge Obama in court for exceeding his authority by unilaterally delaying deadlines under Obamacare. Although he has said he’ll target the one-year delay of the health care reform law’s employer mandate penalties, the text of the GOP resolution gives the Speaker room to legally challenge implementation tweaks to other provisions of the law.
"This isn’t about Republicans and Democrats. It’s about defending the Constitution that we swore an oath to uphold," Boehner said. "Are you willing to let any president choose what laws to execute and what laws to change? Are you willing to let anyone tear apart what our founders have built?"
The move comes as Boehner feels elevated pressure to wage new battles against Obama from confrontation-hungry conservatives. It’s a politically awkward one for his party given that Republicans despise the employer mandate, and have voted to eliminate and delay it. Republican aides say they chose the issue for legal reasons as they think it gives them the best chance of victory in court.
"Republicans want to sue the president for not enforcing a law they want to repeal," said House Minority Whip Steny Hoyer (D-MD). "It is wrong. It is a waste of time. It is a waste of money. It is a distraction from the important issues so important to our people. This lawsuit is nothing more than a partisan bill to rally the Republican base."
Democrats are aggressively fundraising off the planned lawsuit, portraying it as a precursor to impeachment. They’ve boasted about raising millions of dollars from donors recently over the two issues. Boehner has repeatedly insisted he has no plans to impeach Obama, describing it as a Democratic “scam.” The White House responds that House Republicans were discussing the issue long before Democrats mentioned it, and that GOP leaders also vowed they wouldn’t shut down the government before that happened last fall.
Boehner faces an uphill battle in court. The first big question is whether he can achieve “standing” which requires proving a material injury to the House. Legal experts say that’s a very difficult task because no lawsuit emanating from members of Congress against the president has ever achieved standing in court. The next question, if the courts grant standing, is whether the lawsuit has merit to succeed. Republicans may have better luck on this question, experts say, as Obama’s unilateral decision to delay a statutory deadline is arguably problematic from a legal standpoint.
Progressives and some conservative legal minds warn that if the lawsuit succeeds, it would declare open season for the executive and legislative branches to sue each other over any legal disagreement and empower judges to resolve such disputes.
During the Tuesday night broadcast of The Rachel Maddow Show, host Rachel Maddow ended the show by discussing Mississippi Governor Phil Bryant and his recent comments regarding his state’s high uninsured rate. A recent survey revealed that Mississippi is the only state to have seen its uninsured rate increase since the full implementation of the Affordable Care Act. Overall, the country has seen a significant decrease in the number of uninsured people. However, Mississippi’s uninsured rate has climbed to 21.46%. Only Texas currently has a higher uninsured rate than Mississippi.
When presented with these results, Bryant decided that President Barack Obama and the ACA were to blame.
“If statistics show that the ill-conceived and so-called Affordable Care Act is resulting in higher rates of uninsured people in Mississippi, I’d say that’s yet another example of a broken promise from Barack Obama.”
Maddow highlighted Bryant’s refusal to work with any of the provisions of the ACA that would have helped bring health coverage to more Mississippians. The governor refused to assist in creating a state exchange even though his own state’s health commissioner, a Republican, had a well-designed exchange ready to be put in place. Due to Bryant’s intransigence, the HHS and other federal agencies were unable to work with the state exchange, and only two health insurance companies were willing to be placed on it. The governor also refused to expand Medicaid, which would have provided coverage to over 300,000 residents of his state. Instead, Bryant said that people have free coverage — the emergency room.
Rachel decided to use a visual metaphor to illustrate the effects of Bryant’s obstruction when it comes to Obamacare. The host brought out a model of a Lamborghini. The remote control car worked perfectly and she was able to drive it around the studio. After driving it around, she bashed it several times with a hammer. After causing severe damage to the car, she tried to drive it around again. Of course, it went nowhere. In mock outrage, Maddow kicked the car, called it a piece of junk and said nobody should get this car because it doesn’t work.
Below is video of the segment, courtesy of MSNBC:
In a short four-minute segment, Rachel Maddow destroyed Bryant’s declaration that the ACA is to blame for Mississippi’s high uninsured rate. The fact remains that red state Republican governors like Bryant and Texas’ Rick Perry have done everything in their power to ensure that the health care law is a failure in their state. However, when presented with the aftereffects of their obstruction, they turn tail and blame Obama or Democrats for the negative impact of their actions. Republicans take a jackhammer to Obamacare in their states and then call it a piece of junk when it doesn’t work as promised.
Now this is more like it. House Democrats aren’t sitting idly by while John Boehner tries to assuage his angry right wing with a lawsuit instead of impeachment. No, they’re making Republicans pay for their folly by forcing votes that make them look like rubes and fools.
Democrats asked for a provision that would require Republicans to regularly disclose how much this lawsuit was costing American taxpayers. Republicans said no.
Democrats asked for a conflict-of-interest measure that would prevent lawmakers from hiring lawyers for this case who lobby Congress. Republicans said no.
Democrats asked for a separate conflict-of-interest amendment that would stop Congress from hiring a law firm for this case that has a financial stake in the implementation of the ACA. Republicans said no.
Democrats asked for a disclosure requirement that said congressional contracts with outside counsel would be disclosed before they’re approved. Republicans said no.
Democrats asked for a measure that would require Republicans to explain where the public funds will come from that will pay for the lawsuit. Republicans said no.
There were 11 proposed improvements in all, Each were defeated with zero Republican votes.
Rep. Michele Bachmann came out in favor of impeaching President Obama over his handling of the Defense of Marriage Act and Obamacare during her appearance this week on the radio show “Faith & Liberty.” She said that while Obama should be impeached, first “the American people have to agree with and be behind and call for the president’s impeachment.”
“Legally, do I believe our president has committed impeachable offenses? Yes I do. And I believe that our president is subject to impeachment,” she said.
The Minnesota Republican, however, cautioned that House Republicans should wait to hold impeachment proceedings until they successfully “make the case” to voters.
“We the people who are elected in the United States Congress, we are here to be the voice of the people and we need to reflect what it is what the people are telling us,” she said. “There is a group of people who see that this president has committed an impeachable offense and are anxious for Congress to do something, but if you look at the overwhelming number of people, they just aren’t there yet and it is up to Congress to make the case and explain to the people why we have to impeach.”
Bachmann also said she was in complete agreement with conservative pundit Andrew McCarthy’s “great book,” “Faithless Execution: Building the Political Case for Obama’s Impeachment,” warning that Obama is bringing about a “constitutional crisis” and a “tyranny against the people.”
WASHINGTON — Republicans teed up House Speaker John Boehner’s lawsuit against President Barack Obama Thursday, passing a measure that will likely come up for a full House vote shortly before lawmakers go on vacation in August.
The Rules Committee voted along strictly partisan lines on amendments to a resolution authorizing the lawsuit, ignoring the the arguments of four Democrats who called it a political stunt that even Supreme Court justices such as Antonin Scalia would not look upon favorably.
Boehner intends to sue Obama to require him to more quickly enforce all the provisions of Obamacare, particularly the sections that have been delayed. The House has voted repeatedly to repeal the law.
Rep. Louise Slaughter (D-N.Y.), the top Democrat on the committee, argued that the high court has repeatedly rejected such lawsuits. An equal branch of government — in this case the Congress — would have no standing to sue another branch — the executive, she argued.
"Justice Scalia agrees with our explanation of why this lawsuit has no basis in precedent," Slaughter said. "Justice Scalia wrote that the framers of the Constitution emphatically rejected a, quote, ‘system in which Congress and the executive can pop immediately into court, in their institutional capacity, whenever the president… implements a law in a manner that is not to Congress’s liking.’”
Slaughter also cited a ruling this week in Wisconsin against Sen. Ron Johnson (R-Wis.), who tried to challenge a part of the Affordable Care Act that allows Congress to cover health care premiums for staffers. Johnson argued that he was personally injured because it affects how he pays his staff, but the court ruled he has no standing.
Slaughter didn’t mention it, but she could have pointed to a lawsuit in 2006 that she and several other Democrats filed against President George W. Bush over the budget. It also was tossed because members of Congress lacked standing.
The fact that legal precedent is against them did not deter Republicans. Rep. Daniel Webster (R-Fla.) noted that when he was a Florida state lawmaker, he was among only a handful who thought it would be worthwhile to try to overturn the state Supreme Court’s ruling in the 2000 presidential election recount. The case was infamously decided in Bush’s favor, despite the lack of precedent.
Webster said the issue was that the Florida judges had taken away the power of the state lawmakers, and the high court gave it back.
"The point is this: You have to stand up for the body," Webster said. He added: "I thought we ought to at least fight, and we did, and we won. That’s the point."
Rep. Alcee Hastings, a Democrat from Florida, couldn’t let Webster’s remarks go without saying: “I was of the mind then and I’m of the mind now that that election was stolen, period.”
Ulimately, Democrats said the Boehner lawsuit was a stunt designed to keep the tea party wing of the GOP in line.
"What frustrates us is you’re acting like this is all on the level, when it isn’t," Rep. Jim McGovern (D-Mass.) told his Republican colleagues. "This has nothing to do with the law. This has everything to do with trying to manage some of the extremists in your party, some of the cuckoo clocks, who are talking about impeachment."
Democratic amendments to require cost estimates and weekly disclosure of expenditures related to the lawsuit were voted down, as were attempts to bar lawyers and consultants from participating in the suit if they stand to gain from work related to Obamacare outside the lawsuit. Republicans said such steps were redundant or unnecessary.
The Rules Committee is expected to take up the bill again next week to write the rules on how it will be considered, and then send it to the House floor for a vote.
Slaughter predicted that in the unlikely event a court actually grants standing for the case, it would be disastrous for the federal government.
"If this lawsuit is successful, it will upset the delicate balance in our separation of powers that has served this country well for over 200 years," Slaughter said. "Instead of Congress using the powers it was given by the Constitution to hold the executive in check, Congress will turn over its power to the courts to defend us every time we have a disagreement with the president. And my prediction is, the president will do the same whenever he doesn’t like how we are doing our job."
The White House has announced it will no longer require non-profit religious organizations to fill out a form in order to opt out of furnishing contraception coverage for employees.
The Affordable Care Act, (ACA) colloquially known as Obamacare, will soon have revised procedures that will allow non-profit religious organizations to avoid providing contraception coverage to its employees.
A spokesman identified as a “senior administration official” assured CNN they had found a “fix” that would allow religious organizations to opt out, while ensuring their employees will still have contraception coverage with no co-pay:
"In light of the Supreme Court order regarding Wheaton College, the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing"
The move is a pre-emptive one by administration officials, who anticipate that the Supreme Court could soon make final - and extend to other religious institutions - a temporary order that currently allows one Christian college (Wheaton) to refuse its employees contraception coverage, without first filling out the ACA required form stating their objection. College officials claim even filling out the form violates their religious beliefs.
The Justice Department filed a brief with the Supreme Court yesterday, notifying the High Court of new rules governing the religious exemption accommodation process that will no longer require the use of a form, before they finalize their Wheaton College ruling. The brief said the rules will apply to Wheaton and any other institutions to which the Supreme Court might extend the religious exemption.
A White House spokesman said the new procedures, which are still being finalized, will provide an “alternative way for objecting nonprofit religious organizations to provide notification.” He added that ”the administration believes the accommodation is legally sound.”
The new procedures are expected to be in place next month, at which time the Justice Department will notify the Supreme Court.
On Tuesday, two Republican-appointed judges on the D.C. Circuit Court of Appeals ruled that the text of the Affordable Care Act permits only state-run exchanges — not the federal exchange — to provide subsidies. The ruling, if it stands, would cripple Obamacare as the federal subsidies are essential to the law. The Obama administration quickly said it would ask for a full bench ruling, which could plausibly reverse the decision.
Also on Tuesday, a panel of three Democratic-appointed judges on the 4th Circuit Court of Appeals ruled the opposite, declaring unanimously that the law clearly lets the federal exchange, built on behalf of states that declined to build their own insurance marketplaces, provide subsidies.
Tom Goldstein, a lawyer who has argued cases before the Supreme Court, wrote that “the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court.”
The Obama administration’s en banc appeal means the full active D.C. Circuit bench, plus the senior judges who originally heard the case, would rehear the case and revote on it. For that to happen, a majority of active judges have to agree to hear it en banc. If they do, the partisan odds favor Obamacare: 8 of the judges would be Democratic appointees; 5 of them would be Republican appointees. Legal experts say an en banc hearing that’s unlikely to happen until the fall or early winter.
"I think it’s very likely [to be reversed]," said Nicholas Bagley, a professor at the University of Michigan Law School. "The mode of statutory construction that Judge Thomas Griffith used is one that generally appeals to conservatives more than it does to political liberals. So I think it’s unlikely that a Democratic-appointed judge will rule against the government here."
Senate Majority Leader Harry Reid (D-NV), who helped President Obama add three judges to the D.C. Circuit by changing the Senate rules in November, predicted the full bench would reverse the panel’s ruling. “It seems clear to me that that decision is going to be overturned,” he told reporters.
Meanwhile, the Obamacare challengers at the 4th Circuit would have a very hard time winning en banc. The full bench consists of 9 Democratic-appointed judges and 4 Republican-appointed judges. So it’s plausible they won’t seek an en banc ruling. Instead it may be in their interest to appeal directly to the Supreme Court, where legal experts say their chances of victory would be greater.
For the Supreme Court to accept a case, four justices have to agree to it. But whether the Supreme Court takes any given case for review depends on several hard-to-predict factors. A split among the circuit courts on the validity of a major federal law enhances the chances of the Supreme Court getting involved, legal experts say. But it’s possible that if the D.C. Circuit ruling is reversed and the 4th Circuit ruling stands, there will be no split and the Supreme Court may be likelier to turn it down and let the rulings upholding the law stand.
"If the circuits don’t split — if the D.C. Circuit does reverse it en banc, the absence of a circuit split will diminish the likelihood that the Supreme Court will hear the case. But even in the absence of a circuit split the Court could hear it,” Bagley said.
The White House would prefer not to re-litigate the health care law at the Supreme Court, where five Republican-appointed justices have a demonstrated hostility toward the law. In 2012, four of them voted to wipe out Obamacare in its entirety; the swing vote, Chief Justice John Roberts, made the Medicaid expansion optional for states. Last month, the five justices axed a requirement under the law that employers cover emergency contraceptives for women in their insurance plans at no extra cost.
But Goldstein suggested the odds remain daunting for conservatives, who are seeking to destroy an essential component of a massive new law on the basis of a dubious technicality. Roberts, for all his misgivings, proved unwilling to deal a fatal blow to Obamacare in 2012. And now that millions of Americans are benefiting from the law’s federal subsidies, stripping them away is a difficult proposition.
Goldstein predicted “the administration probably will come out ahead in the end.”
h/t: Sahil Kapur at TPM
Near the end of 2013, Sen. Ted Cruz (R-TX) led a final crusade to defund the Affordable Care Act, eventually announcing on the Senate floor that “I intend to speak in opposition to Obamacare, I intend to speak in support of defunding Obamacare, until I am no longer able to stand.” Cruz did succeed in goading his fellow Republicans into shutting down the federal government, but his effort was ultimately doomed. The American people’s elected representatives voted not to defund Obamacare, and the shutdown ended.
On Tuesday, two Republican judges voted to rewrite this history. Under Halbig v. Burwell, a decision handed down by Judge Raymond Randolph, a Bush I appointee, and Judge Thomas Griffith, a Bush II appointee, millions of Americans will lose the federal health insurance subsidies provided to them under the Affordable Care Act — or, at least, they will lose these subsidies if Randolph and Griffith’s decision is ultimately upheld on appeal.
Ted Cruz is undoubtedly smiling today. Two unelected Republicans just voted to erase his most embarrassing and most public defeat, and they voted to take away millions of Americans health care in the process.
Meet The Republicans
It’s important to understand just who these two Republicans are. Judge Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side. Randolph complained, just a few weeks before President Obama would announce that the Affordable Care Act had overshot its enrollment goal, that the launch of the Affordable Care Act was “an unmitigated disaster” and that its costs “have gone sky-high.” At one point, Randolph also cut off Judge Harry Edwards, the sole Democratic appointee on the panel, to cite an editorial published by the conservative Investor’s Business Daily to prove the argument that Obamacare should be defunded.
The Investor’s Business Daily is not known as a particularly reliable source on health policy. In 2009, for example, it published an editorial arguing that Stephen Hawking, the British physicist who is an Englishman from the United Kingdom, “wouldn’t have a chance in the U.K., where the National Health Service would say the life of this brilliant man, because of his physical handicaps, is essentially worthless.”
Judge Griffith has a reputation as a more moderate judge, but it is not clear that this reputation is deserved. In 2012, Griffith’s colleague, Judge Janice Rogers Brown, published a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. “America’s cowboy capitalism,” Brown claimed, “was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.” Later in her opinion, Brown suggested that the Court went off the rails when it “decided economic liberty was not a fundamental constitutional right.” In the early Twentieth Century, conservative justices relied on ideas of “economic liberty” that were discarded in the 1930s in order to strike down laws protecting workers’ right to organize, laws ensuring a minimum wage and laws prohibiting employers from overworking their employees.
Griffith did not join Brown’s opinion, but his explanation for why he did not do so is instructive — “[a]lthough by no means unsympathetic to [Brown’s] criticism nor critical of [her] choice to express [her] perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” So Griffith is “sympathetic” to Brown’s argument that much of the Twentieth Century is unconstitutional, but he did not want to join her opinion because the arguments she made were not raised by the parties in that case. Halbig, by contrast, presented Griffith with a much more direct attack on supposedly “burdensome regulation” brought by the forces of “cowboy capitalism.”
Punishing Millions For A Proofreading Error
The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.
The Supreme Court of the United States, however, has long recognized that a law’s clear purpose should not be defeated due to an error in proofreading. As the Court explained in 2007, “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” It is indeed true that a single phrase of the Affordable Care Act, if read in isolation, suggests that Congress intended only state-run exchanges — as opposed to federal exchanges — to offer subsidies, but this provision is contradicted by numerous other provisions of the law.
One provision of the Affordable Care Act, for example, indicates that any “exchange” shall be an “entity that is established by a State” — language which indicates that federally run exchanges will be deemed to be “established by a state.” This may seem counter-intuitive, but Congress has the power to define the words that it uses in any way that it wants, even if those words are defined in ways that are unusual. Another provision of the law provides that, when a state elects not to run an exchange, the Secretary of Health and Human Services “shall … establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” Thus, the law not only authorizes the Secretary to stand in the state’s shoes when it runs an exchange, it also empowers her to implement the law’s “other requirements.”
Nor is this is the full extent of the problems with Randolph and Griffith’s conclusion. Indeed, in order to accept their decision, a person reading the Affordable Care Act must ignore the following facts:
- The subtitle of the Affordable Care Act which contains the provisions at issue in this case is titled “Affordable Coverage Choices for All Americans.” If Randolph and Griffith are correct, Congress would have named that subtitle “Affordable Coverage Choices for All Americans Except For Those Americans Who Live In States With Federally-Run Exchanges.”
- The Affordable Care Act says that it will “achieve near-universal coverage.” If Randolph and Griffith are correct, Congress would have said that Obamacare “achieves near-universal coverage except in states with federally-run exchanges.”
- An amendment to the Affordable Care Act requires the federally-run exchanges to report various information that they would only be able to report if they were providing subsidies, such as whether taxpayers received an “advance payment of such credit”; information needed to determine individuals’ “eligibility for, and the amount of, such credit”; and “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” Congress would not have imposed this reporting requirements if they thought that the federal exchanges would not offer subsidies.
- The Affordable Care Act also provides that the only people who are qualified to purchase insurance at all on a federally-run exchange are people who “reside in the State that established the Exchange.” Thus, if federally-run exchanges are not deemed to be “established by the State,” that means that no one at all is allowed to purchase health insurance on the federally-run exchanges, and there would be no purpose whatsoever to their existence. As the trial court explained in this very case, this interpretation makes no sense, because “courts presume that Congress has used its scarce legislative time to enact statutes that have some legal consequence.”
Virtually no one, apparently including at least one of the plaintiffs who brought this lawsuit, actually believes that these propositions are true. Indeed, as the government points out in its brief, one of the plaintiffs who brought this lawsuit also was a plaintiff in the last lawsuit seeking to gut Obamacare, the challenge to the individual mandate that was rejected by the Supreme Court. In that lawsuit, this plaintiff argued that the subsidies were an integral part of every exchange’s’ very design — “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” Now, however, he expects the courts to believe that these subsidies were entirely optional, and that Congress intended federally-run exchanges to get along without them. Notably, the exact same lawyer represented this plaintiff when he made both of these mutually exclusive claims.
The unsuccessful legal argument claiming that the individual mandate was unconstitutional was a major prong of the Republican attack on the law as early as 2009. Yet, even after the GOP decided that defeating Obamacare in court was their number one policy priority, after Republican officials in numerous states brought a high-profile lawsuit seeking to kill this law, and after they hired one of the best lawyers in the country to drive this litigation, no one noticed the alleged flaw in the statute that Randolph and Griffith rely upon today. The reason why is obvious. Not even the many Republican officials who filed briefs seeking to kill this law the first time around actually believed that the law was intended to deny subsidies to people who buy insurance in federal exchanges.
To get around this fact, Randolph and Griffith spin an alternative history of the Affordable Care Act’s passage. A major prong of this alternative history claims that Congress wanted to deny subsidies to people in states with federally-run exchanges because that that would provide states with an incentive to start their own exchange — in Randolph and Griffith’s words, Congress “us[ed] subsidies as an incentive to gain states’ cooperation.” Thus, in this narrative, Congress viewed getting states to run exchanges as an all-encompassing goal, trumping even the law’s stated goals of providing “Affordable Coverage Choices for All Americans” and achieving “near-universal coverage.” Needless to say, there is absolutely no evidence whatsoever that Congress actually viewed the administrative question of which set of government bureaucrats would run a particular state’s exchange as a question of such superseding importance that they were willing to deny health coverage to millions of people in order to ensure that the right set of bureaucrats run the exchanges in each state.
An Opinion That Kills
Should Randolph and Griffith’s decision be upheld on appeal, which, for reasons explained below, is unlikely, it would send destructive shockwaves through much of the American health care system. As ThinkProgress previously explained, suddenly removing federal subsidies from insurance markets that expect them to continue being paid would force health insurers to jack up their premiums in order to cover their costs. Higher premiums, however, would cause many healthy individuals to drop their coverage. Which will force insurers to raise their premiums even more, which will cause even more individuals to lose their coverage. Indeed, according to a brief filed by several economists, the resulting death spiral would render insurance “unaffordable for more than 99 percent of the families and individuals eligible for subsidies” within the federal exchanges.
This economic problem exposes yet another flaw in Randolph and Griffith’s opinion. In order to accept their reasoning, one has to believe that Congress buried a hidden time bomb within the arcane provisions of the Affordable Care Act that, when it detonated, would render much of the act a nullity. As the economists explain in their brief, Randolph and Griffith’s decision presumes that “Congress sought to legislate into existence a massive new social program that it understood would immediately fail.”
So Randolph and Griffith’s opinion would be comic if its result were not so tragic. And make no mistake, if this opinion is upheld on appeal, it will be a tragedy. According to one Harvard study, nearly 45,000 Americans between the ages of 18 and 64 died in a single year because they lacked health insurance. Randolph and Griffith’s decision would ensure that many of these deaths resume. That’s tens of thousands of wives who will never hold their husbands again, and tens of thousands of fathers who will never kiss their daughters again, all because two unelected Republicans hunted through an ocean of language indicating that Congress intended to end these needless deaths in order to find a single piece of flotsam suggesting that the law should be defunded.
This is not how judges typically behave in a democracy. And it is not a decision that is rooted either in Congress’ intentions or in Supreme Court precedent.
An Opinion That Is Unlikely To Survive
We live in interesting times. And we live in times where judges and justices can not longer be expected to rely on established law, especially when they are presented to an opportunity to undermine Obamacare. Nevertheless, there are several reasons to be optimistic that Randolph and Griffith attempt to defund Obamacare will not survive contact with a higher authority.
For starters, under the Supreme Court’s Chevron Doctrine, courts typically defer to a federal agency’s reading of a law so long as “the agency’s answer is based on a permissible construction of the statute.” Randolph and Griffith get around this doctrine by claiming that the law “the ACA unambiguously restricts the section 36B subsidy to insurance” purchased on state-run exchanges.
If you truly believe that the only possible interpretation of the Affordable Care Act’s language is the one adopted by Randolph and Griffith on Tuesday, then you may want to go back to the top of this article and start reading it all over again. In any event, two federal judges previously concluded that Obamacare is unambiguous in the other direction — that is, it unambiguously offers subsidies to people who purchase insurance through federal exchanges. That alone demonstrates that, even if the law isn’t completely clear, its meaning is at least uncertain enough that the courts should defer to the agency’s reading under Chevron.
More importantly, Randolph and Griffith’s own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.
Should the full DC Circuit intervene, of course, their decision can ultimately be appealed to the GOP-controlled Supreme Court. But we’ve already seen this story play out once before. The last time conservative lawyers brought a case to the Supreme Court seeking to gut Obamacare, Chief Justice John Roberts voted to uphold the bulk of the law.
Roberts cast this vote a year-and-a-half before much of the law would actually be implemented, meaning that, if he had chosen to struck down the law then, he would have been able to do so at a time when the constituency for upholding the law was relatively small. Now, however, millions of Americans stand to lose their health insurance if Roberts signs on to Randolph and Griffith’s reasoning — and Roberts would be personally responsible for the subsequent loss of health coverage and needless deaths that would result. If Roberts was unwilling to trash the law at a time when the impact would have been relatively small, it is unlikely that he will do so under circumstances that are likely to inspire the masses to storm his castle while wielding pitchforks.
Here are three issues where McConnell’s campaign has obscured his stance.
1. Ryan budget? What Ryan budget?
McConnell has been an aggressive supporter of the controversial budget blueprints by Rep. Paul Ryan (R-WI) to slash taxes and privatize Medicare — he voted for them when they came up in 2011, 2012, and 2013.
Recently Grimes attacked him in an ad claiming the 2011 version of Ryan’s budget would raise a retiree’s Medicare costs by $6,000. In response McConnell’s campaign backed away from his previous alliance with Ryan’s budget, telling FactCheck.org, “There is no way to speculate if [McConnell] would have voted for final passage without having debated amendments.” His campaign made a similar comment to a WFPL reporter.
To be sure, Grimes’ attack was embellished — the $6,000 figure applied only to the 2011 Ryan budget, not the updated versions, and would impact those 55 and under at time of passage. But McConnell’s campaign didn’t argue that, nor did it respond to TPM’s requests to explain what he’d want to change in the budget.
Instead he distanced himself from a proposal that is an article of faith in the GOP, which he strongly supported and united nearly every GOP senator behind.
2. Obamacare is unconnected to … Obamacare
It is a cruel irony that McConnell, Obamacare’s most formidable enemy, hails from a state where it is working considerably well. In May, faced with the fact that some 413,000 Kentuckians are benefiting from Obamacare via its popular state exchange Kynect, McConnell told home state reporters the two were “unconnected” when asked if he wanted to dismantle Kynect.
His campaign spokeswoman explained his position: “If Obamacare is repealed, Kentucky should decide for itself whether to keep Kynect or set up a different marketplace,” said Allison Moore.
The stance is unconnected to Obamacare realities. Kynect is inoperable without the health care law which provides the subsidies, consumer protections and coverage mandates from which Kentuckians are benefit. Without Obamacare, Kynect is hollow. McConnell’s comments would make more sense if he had an alternate plan to reconstruct Kynect in a world without Obamacare. But doesn’t appear to have one. When TPM put that question to McConnell he responded, “Yeah, we’ve already addressed that issue, and I don’t have anything to add.”
3. Violence Against Women Act? I’m all for it!
Women voters are ordinarily a sore spot for McConnell, but more so this year as Grimes makes an aggressive pitch for them. Last August, McConnell held an event in Kentucky called “Women For Team Mitch” and distributed packets to reporters which, among other things, featured a constituent touting his ostensible support for the Violence Against Women Act, an anti-domestic-abuse law that Congress had renewed just months earlier.
The problem: McConnell has consistently voted against the act. Although he did cosponsor VAWA legislation in 1991, which his campaign testimonial touted, the packet neglected to mention that McConnell voted against passage of the bill when it originally came up in 1993. He also voted against reauthorizing it in 2012 and 2013, the only two times that Congress has held recorded votes to renew it.
McConnell’s campaign wouldn’t comment on the matter. During the VAWA debates in 2012 and 2013 he supported a scaled-back version which excluded protections for LGBT victims, Native Americans and undocumented immigrants. A bipartisan version which included those protections eventually became law.
Mitch McConnell: say one thing, do another. Let’s send him packing in November at the ballot box by replacing him with Alison Lundergan Grimes.
H/T: Sahil Kapur at TPM