Much of the Affordable Care Act must be defunded and millions of Americans must lose their health insurance, according to an opinion issued Tuesday by Judge Ronald A. White, an Oklahoma federal judge appointed to the bench by George W. Bush. White’s opinion reaches the same result reached by two Republican appeals court judges in a similar case, although that decision was later withdrawn by the full appeals court. To date, nine federal judges have considered this question of whether much of the law should be defunded. Only three — all of whom are Republicans — have agreed that it should be.
The theory behind this lawsuit, Pruitt v. Burwell, is that although the Affordable Care Act gives states a choice between setting up their own health insurance marketplaces or permitting the federal government to do it for them, health exchanges run by the federal government cannot provide subsidies to help insurance customers pay for their insurance. Should this theory ultimately be embraced by the courts, it will likely trigger a “death spiral” of premium spikes that will drive more and more consumers out of the insurance market, until the markets eventually collapse. As ThinkProgress previously explained, the thrust of the plaintiffs legal argument in this and similar cases is that Obamacare “is supposed to create barren health exchanges where little or no health insurers offer exorbitantly priced insurance that hardly anyone can afford,” and that it was supposed to create these useless exchanges despite the fact that the law explicitly states that it will achieve “near-universal coverage by building upon and strengthening the private employer-based health insurance system.”
There are many flaws in this legal theory, and we lay out several of them here and here. Nevertheless, it is worth noting a few flaws in Judge White’s legal reasoning that appear unique to his own opinion.
One thing that immediately stands out in White’s opinion is just how thin his legal reasoning is. Despite the fact that this case concerns a matter of life and death for the millions of Americans he orders uninsured, his actual discussion of the merits of this case comprises less than 7 double-spaced pages of his opinion. In that brief analysis he quotes the two other Republican judges who ordered Obamacare defunded, claiming that “the government offers no textual basis” in the Affordable Care Act itself for treating federally-run exchanges the same as those run by states. In fact, the government has identified numerous provisions of the law which cut against the argument that only some exchanges should provide subsidies.
Even more significantly, White’s opinion does not at any point acknowledge the legal standard that applies when a statute contains language that is at odds with other provisions of the law. As the Supreme 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.” White, by contrast, relies entirely a passage that supports the plaintiffs’ arguments while ignoring the much more prevalent statutory language that supports the government’s argument.
Instead of following Supreme Court precedent, White relies heavily on analysis from a very ideological law professor. Though White’s analysis is quite short, he devotes much of it to a lengthy quote by Professor Richard Epstein, a prominent conservative academic who agrees that Obamacare should be defunded. Epstein has also described Supreme Court opinions establishing the fact that Medicare is constitutional as “catastrophic, ignorant, and uninformed decisions.” So he is a very odd source for a federal judge to rely upon in assessing the correct state of the law.
Towards the end of his opinion, White claims that the reading he gives to the Affordable Care Act — a reading which assumes that the lawmakers who enacted this politically contentious law intended to give every Republican governor in the country the power to blow up one of its central functions in their state — is not “absurd” because “it could reflect the sort of compromise that attends legislative endeavor.” Yet the only evidence he provides that Congress may have intended to “compromise” by giving Rick Perry the power to destroy Obamacare in Texas is a now-infamous quote by Professor Jonathan Gruber. Gruber is an economist who consulted with Congress in designing the law. In 2012, nearly two years after the Affordable Care Act became law, Gruber was recorded giving a talk where he said that “if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”
Yet, while Gruber did indeed utter these words and they may seem damning out of context — to the extent that a statement made by a non-lawmaker long after a statute becomes law is useful in assessing the lawmakers’ intent — Judge White probably should have watched the entire video where Gruber made this statement before he cited the statement as evidence of how Obamacare was supposed to function. Here is the Gruber quote in context:
Yes, so these health insurance exchanges … will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop, I think, partly because I think they want to sort of squeeze the states to do it.
I think what’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.
Read in context, Gruber’s infamous quote takes on an entirely different meaning. It suggests that he was concerned that some people may not get insurance subsides because “federal government has been sort of slow in putting up its backstop” not because the law forbids federally-run exchanges from providing subsidies. To the contrary, Gruber explains, “[i]n the law it says if the states don’t provide them the federal backstop will.”
So White’s opinion is poorly reasoned. It ignores binding Supreme Court precedent. And it engages in selective quotation to support his conclusion. If it is reviewed by a panel of judges interested in neutrally applying the law, White will be reversed.
There is no guarantee, however, that the judges who review White’s decision will be able to set aside their partisan preferences, whatever they may be. Indeed, one of the leading attorneys spearheading these attacks on the Affordable Care Act recently told a reporter that he believes he is going to win because he does not expect to “lose any Republican-appointed judges’ votes.”
White’s opinion suggests that this attorney may be correct that judges will vote their political party, rather than voting the law when they decide this and similar cases.
Ted Cruz knew just what Values Voter Summit attendees wanted to hear today, delivering a speech about how Democrats in Congress want to repeal the First Amendment’s free speech and religious liberty protections along with the Second Amendment. He even spoke out against Democrats for threatening the “right to privacy,” which ironically many conservatives believe is not part of in the Constitution but actually a liberal invention.
“Defend the values that are American values, we stand for life, we stand for marriage, we stand for Israel,” he said.
Cruz, while applauding his own applause lines, then laid out the agenda for a GOP-controlled Senate.
“We abolish the IRS,” Cruz said, and “we repeal Common Core” — an odd agenda item since Common Core was not passed by Congress but enacted by various state legislatures controlled by Republicans and Democrats alike.
And of course, repeal Obamacare.
h/t: Brian Tashman at RWW
Next week marks the Supreme Court’s first conference after the Court adjourned last June. The next week marks the formal beginning of its 2014-2015 term. Much of the drama that will unfold in this coming term, however, is likely to come from cases the justices have yet to agree to hear. Marriage equality, abortion and birth control are all fairly likely to wind up on the Court’s docket before the justices go back on vacation next June. In the meantime, however, the justices will consider the rights of pregnant women who face discrimination in the workplace, they will weigh the Voting Right Act for the first time since they gutted much of this law in 2013, they will thrust themselves into the delicate foreign policy problems raised by the tensions in Israel and Palestine, and they will examine when the First Amendment protects people who make violent threats online.
Here are six major cases the justices will consider this term, as well as a short list of issues they stand a good chance of taking up before the term is over:
Peggy Young was tasked with lifting boxes as heavy as 70 pounds in her job as a United Postal Service worker. When she got pregnant, her midwife recommended that she not lift more than 20 pounds, and wrote a note asking her employer to put her on light duty. Had Young been written a similar note because Young broke her arm carrying boxes, or suffered from a disability, UPS would have put her on what is known as “light duty.” But UPS wouldn’t do it for Young on account of her pregnancy.
[C]omplaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
A federal appeals court sided with UPS, finding that granting “light duty” to Young would give pregnant employees an advantage over other other employees and that Young didn’t suffer pregnancy discrimination. But other than those lone judges, UPS doesn’t have many allies in Young v. UPS. Briefs filed on behalf of state and local lawmakers, national medical associations, the U.S. Women’s Chamber of Commerce, the U.S. Solicitor General, and even 23 pro-life organizations defend Young’s right to a work accommodation. They say the Fourth Circuit’s ruling was counter to the intent of anti-discrimination laws, that it was bad for the health of mothers and children, that it was bad for the economy, bad for business, and even could encourage women to get abortions. In all, 11 amicus briefs were filed supporting Young and none supporting UPS. Even the members of Congress who passed the Pregnancy Discrimination Act explained that they intended for the act the court was interpreting to protect people just like Young, and that the court ruling against her “ignored the unambiguous mandate of the PDA requiring employees to consider only the ability or inability to work in determining a pregnant worker’s entitlement to benefits.”
The Pregnancy Discrimination Act prohibits employers from treating pregnant women differently from other employees who are “similar in their ability, or inability, to work.” The act was passed in response to rampant mistreatment and misperceptions of women workers. But these misperceptions persist, even as women now make up about half of the workforce and a large proportion of them will either leave the workforce at some point to have a child, or may be viewed as a woman with the potential to one day leave the workforce for that reason.
In fact, complaints to the Equal Employment Opportunity Commission alleging pregnancy discrimination have only increased, prompting the Commission to remind employers recently that they still can’t discriminate against pregnant women.
As a group of women’s advocacy groups and law professors point out in their brief, the ruling against Young is likely to harm the women most in need of pregnancy discrimination protection — those in “low-wage jobs and traditionally male-dominated occupations who are most likely to experience temporary conflicts between the physical effects of pregnancy and job requirements,” and already experience disproportionate discrimination, according to recent statistics.
Despite all of the support and very little public opposition for enforcing pregnancy discrimination laws, the five justices on the Roberts Court most likely to vote against Young are known for having what Justice Ruth Bader Ginsburg referred to as a “blind spot” when it comes to women. In 2007, these five men rejected Lilly Ledbetter’s fair pay lawsuit, in a decision later overturned by an act of Congress. In 2011, they turned backthe largest-ever class of women alleging gender discrimination by Wal-Mart. And in 2013, that same voting bloc held that many corporations get to decide when their female employees should have access to contraception. Commenting on this blind spot, Ginsburg said in an interview recently, “[T]he justices continue to think and change so I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’” In each district where African Americans were in the majority under the previous maps, according to testimony from one of the legislative leaders involved in the redistricting process, the legislature tried to “at least maintain” or “increase” the percentage of black voters under the new maps. The result was that black voters were packed into relatively few districts, many of which had black supermajorities, rather than having some of those voters be spread into other districts where they could potentially swing the outcome of an election away from the candidate preferred by most whites. In a state where voters are largely polarized on the basis of race — in 2008, 98 percent of African Americans voted for Obama and 88 percent of whites voted for McCain — a racial redistricting scheme that reduces minority voting power also benefits Republicans over Democrats.
When the state of Alabama redrew its legislative districts in 2012, it applied a method one judge described as “naked ‘racial quotas.’”
Alabama justifies its redistricting scheme primarily by arguing that Section 5 of the Voting Rights Actrequired each majority black district to maintain its black population levels after a redistricting. This interpretation of Section 5 is very much in doubt, however. And even if it is the correct reading, the Supreme Court largely neutered Section 5 in its 2013 decision in Shelby County v. Holder, so it’s not at all clear that an appeal to Section 5 can still justify racially motivated district lines. The thrust of the Court’s recent affirmative action cases has been that “racial categories or classifications” are subject to the most skeptical level of constitutional scrutiny. If the Court treats Alabama’s racially conscious redistricting process with similar skepticism, it is difficult to see how it survives.
When What You Say On Facebook Lands You In Jail
It’s always been difficult to assess when one person is truly threatening another. But it’s especially difficult on the Internet and social media. If someone tells us they’ll kill us, we may take them at their word out of fear. But what if a similar threat is broadcast to a much broader audience, on social media? Is the threat directed at that person, or is it a form of expression or therapy, directed at a much broader, now-readily available audience? That question has big implications, and it is at the center of the case that is likely the most prominent to assess how we view constitutional principles like free speech in light of evolving cultural and technological norms. In Elonis v. United States, plaintiff Anthony Elonis made some seriously violent comments on Facebook about his wife, who left him and took their children. He said in one status post, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”
Unsurprisingly, his wife perceived the comments as threatening, particularly after she filed a protective order against him. But the comments also read like rap lyrics. And Elonis says they were not meant to be literal. In fact, he posted on his Facebook page several comments that could be perceived as disclaimers, including one that says, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” In another comment, he mimics a sketch from the satirical troupe The Whitest Kids U’ Know, saying, “Did you know that it’s illegal for me to say I want to kill my wife?” Elonis has spent three years in prison for the posts.
The question before the court gets to the heart of how we decide what is known as a “true threat.” The lower court that convicted him decided based on whether an objectively reasonable person would perceive his comment as a threat. But the criminal law often assesses the intent of the person committing the crime. So Elonis argues that the standard should instead whether he intended the statements as threatening.
[W]hen the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
That’s the debate over the legal standard. But there’s also a cultural and racial one. As Slate’s Dahlia Lithwick writes, this case has also become “something of a referendum on the question of whether rap lyrics are an art form.” This isn’t the only case in which communication that is or resembles rap has been used against a defendant in court. There are many other criminal cases in which defendants’ rap lyrics have been used against them, without what rap music scholars sayis a proper appreciation for the standard use of “exaggeration, metaphor, and, above all, wordplay” that are common in rap.
“Without an understanding of the history and traditions of hip hop culture, its artistic elements are vulnerable to misinterpretation,” scholars Erik Nielson and Charis E. Kubrin assert in their amicus brief. The term “body bagged” in rap, for example, means a victory over a rapper’s opponent in a rap battle. Likewise, when the Wu Tang Clan says “I’ll hang your ass with this microphone,” they are asserting their metaphorical, lyrical dominance.
Interestingly, this case, too, has united unlikely allies. In another amicus brief filed in the case, several pro-life groups and anti-abortion protesters joined with People for the Ethical Treatment of Animals (PETA) to also endorse a subjective interpretation of true threats, reasoning that an objective standard infringes on the First Amendment right to protest. And several free press organizations also warned that the inherently provocative content of some journalism could be chilled by an objective standard of what constitutes a true threat. No domestic violence or other groups have weighed in to defend the objective standard.
Religious Liberty in Prison
There’s no question that Abdul Maalik Muhammad, an Arkansas inmate and the plaintiff in a lawsuit calledHolt v. Hobbs, is a very dangerous man (the briefs in this case identify him as “Gregory Houston Holt, also known as Abdul Maalik Muhammad”). He once pled guilty to charges that he threatened to “kidnap and harm the two daughters of President George W. Bush.” A few years later, he “broke into the home of his ex-girlfriend, slit her throat, and stabbed her chest.” Muhammad is undoubtedly a security concerns for the guards in the prison where he is currently incarcerated.
But the fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith. To the contrary, a federal law known as the Religious Land Use and Institutionalized Persons Act (RLUIPA) gives inmates broad religious liberty protections, and permits the government to impose a “substantial burden” on their exercise of religions only when they have an exceptionally good reason to do so. In Mr. Muhammad’s case, he wishes to grow a beard that he believes to be required by his religious faith. In an acknowledgement of the prison’s legitimate security concerns — a too-long beard can be used to conceal contraband or weapons — Muhammad has agreed to limit the length of his beard to only a half-inch.
[T]he fact that Muhammad has a history of violent behavior does not strip him of his right to practice his religious faith.
In their brief, Arkansas officials argue that even the short beard Muhammad wishes to grow presents a security problem. A bearded inmate might hide a piece of a razor blade in their facial hair, or they could hide contraband in their mouth and the resulting “subtle bulge in the cheek” would be disguised by the beard. They might also shave the beard to quickly change their appearance and prevent guards from recognizing them. Yet Muhammad’s attorneys have a fairly convincing response to these objections — “at least forty-four American prison systems would permit [Muhammad’s] half-inch beard, either for all prisoners or for prisoners with religious reasons to grow a beard.” If so many prison systems are indeed capable of managing the security concerns raised by a short beard, it is unclear why Arkansas’ prison system cannot.
Israel and Palestine
Every president since Harry Truman, the president who was in office when the State of Israel was formed, has maintained a policy of neutrality over the question of whether the city of Jerusalem is part of Israel — or, indeed, whether it is part of any other nation. During the Truman Administration, the State Department explained that “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli … sovereignty over parts of the Jerusalem area.” More recently, during the George W. Bush Administration, the State Department explained that “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”
Nevertheless, in an apparent effort to undermine this policy of neutrality regarding which nation may lay claim to Jerusalem, Congress enacted a law in 2002 laying out what purports to be the “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.” A provision of this law provides that U.S. citizens born in Jerusalem may have their birthplace listed as “Israel” on their passport, and the plaintiff inZivotofsky v. Kerry now wants to invoke this law. Both the Bush Administration and the Obama Administration countered that the law is unconstitutional because it interferes with the president’s exclusive authority over American foreign policy.
The Constitution’s text provides little clear guidance on whether Congress or the president should prevail in this dispute. Nevertheless, in resolving this case in the president’s favor, the United States Court of Appeals for the District of Columbia Circuit pointed to a history stretching back to the Washington Administration suggesting that the president has “exclusive power to recognize foreign nations.” It also quoted several prior Supreme Court decisions establishing that the President is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” or that if “the executive branch … assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department.” The question presented by Zivotofsky is whether Congress can, in effect, trump the president’ s judgment on a matter of foreign policy such as this one, or whether the executive branch’s authority in this area is truly exclusive.
When Cops Stop You By Mistake
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” What this means is that, when someone violates the law, it doesn’t matter whether or not they knew what the law said. If it’s a crime, and they are found to have committed the elements of that crime, they are guilty.
Every first year law student learns the fundamental criminal law concept that “ignorance of the law is no excuse.” … The same rule may not apply to cops enforcing the law, however.
The same rule may not apply to cops enforcing the law, however. Nicholas Heien was pulled over on a North Carolina interstate for having a broken tail light. But it turns out that one broken tail light is not a violation of North Carolina law so long as one of the two lights are working. Nonetheless, the cops used that purported violation as a reason for pulling Heien over, and then found cocaine once they searched his car.
Heien argued that because the officers made what is known as a mistake of law, the police had no basis to stop him in the first place, and the later search was invalid. The North Carolina Supreme Court nonetheless upheld the stop 4-3, reasoning that officers in this case made a “reasonable” mistake because the text of the law was not explicit. The case gives the Supreme Court the chance, for the first time, to consider when stops, searches, and seizures are ok even if police misunderstand the law.
As Heien’s lawyers argue, “if motorists were subject to seizures based on mistaken interpretations of arguably imprecise laws, it also would be much more difficult –indeed, sometimes downright impossible – for people to avoid being exposed to traffic stops.” It’s unclear whether drivers can avoid stops anyway. As legal scholar Orin Kerry puts it, “if an officer can’t find a traffic violation to stop a car, he isn’t trying very hard.”
As far as test cases go, Kerr points out that this one case has very good facts for the state of North Carolina, because the traffic law was ambiguous and it is far easier for the officers to say they were acting reasonably when they made a mistake. But the ruling gives the justices an opportunity to re-examine the leeway of officers to make traffic stops, at a time when stops continue to fall disproportionately on African Americans and other minorities. Underlying this case is a larger question: Will justices draw the line?
What Is Yet To Come
In addition to these cases, which the Court has already agreed to hear this term, there are three other high-profile issues that could come before the justices in the coming months, including whether the justices will agree with nearly every single federal judge who has considered the issue that the Constitution forbids marriage discrimination against same-sex couples. It is also fairly likely that the Court will need to clarify justhow far its recent Hobby Lobby decision cuts into the ability of workers to obtain birth control coverage. Although the Hobby Lobby decision itself suggested that the government has some leeway to ensure that workers whose employers object to birth control on religious grounds may still obtain contraceptive coverage through a somewhat complicated process, an order the court handed down shortly after Hobby Lobby suggests that the justices may apply much broader limits on the rights of workers.
There is also an unusually high chance that the justices could take a major abortion case this term. Several cases examining so-called TRAP laws — sham health regulations enacted by lawmakers seeking to restrict access to abortion — are winding there way through the federal court system. Additionally, last term the Court agreed to hear a case concerning whether a state may enact a law that restricted access to medication abortion which was justified by a questionable appeal to women’s health. The Court eventually dismissed the medication abortion case without reaching the merits. It is fairly likely, however, that the Court will want to hear another abortion case as soon as this term which presents the question of when states can use doubtful appeals to women’s health in order to restrict abortion.
There is also an unusually high chance that the justices could take a major abortion case this term.
Finally, there is a small-but-not-zero chance that the justices could take a lawsuit seeking to gut the Affordable Care Act by cutting off subsidies to millions of Americans who currently enjoy subsidized health insurance under the law. It would be highly unusual for the justices to take this case, as there is not currently a disagreement among the lower federal courts regarding whether the subsidies may be paid to all Americans who qualify (although two federal appellate judges did rule against the subsidies earlier this year, their decision was later withdrawn by the full appeals court). Given the extraordinarily partisan environment surrounding all things Obamacare, it is possible that four of the Court’s Republican members — and it only takes four votes for the Court to take up a case — could allow their desire to undermine this law to cloud their legal judgment. Nevertheless, such a decision would open the justices to legitimate concerns that they are placing politics before the law and potentially diminish the prestige of an institution which depends upon its reputation as a neutral arbiter of the law to maintain its legitimacy. That should deter the Court even further from taking this case.
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
A Christian college in eastern Pennsylvania has filed suit in federal court, fighting the Affordable Care Act’s requirement that it provide access to a third-party administrator, which could offer services including the “Plan B” morning-after pill to their employees, according to The Mercury News.
Valley Forge Christian College, located in Phoenixville, filed the suit stating that it objected to being compelled to participate, “indirectly with, or transferring any legal or moral authority by which a third party might enable the provision of such services to the employees of Valley Forge Christian College.”
The college’s objection stems from the “accommodation” provision of the ACA, which allows non-profits to opt out of providing contraceptives by employing a third-party administrator or insurer.
According to the lawsuit, “Valley Forge Christian College has no objection to providing coverage for contraceptive drugs which truly — and only — prevent conception and do not interfere with the continued survival of a human embryo.”
At issue for the small college affiliated with the conservative Assemblies of God, is what it considers “abortion-related drugs and procedures,” including Plan B.
The claims are similar to ones made in the recent Supreme Court Hobby Lobby decision, where the plaintiffs called Plan B an “abortion-causing drug.”
Critics have pointed out that Plan B is not an abortifacient, citing the FDA’s description: “Plan B One-Step will not stop a pregnancy when a woman is already pregnant and there is no medical evidence that the product will harm a developing fetus.”
With the lawsuit, Valley Forge is using the same argument used in Hobby Lobby: their belief that the drug is used for abortions.
Should Valley Forge fail to provide access to a third party administrator it would face fines of $100 per day per beneficiary under provisions of the Affordable Care Act.
“In its recent ‘Hobby Lobby’ decision, the Supreme Court of the United States made clear that citizens cannot be forced to choose between violating their faith and being punished by the government for following their faith,” explained Jeff Mateer, general counsel for Liberty Institute, which filed the suit along with a local law firm.
The U.S. Department of Health and Human Services, named in the suit, referred all questions to the U.S. Department of Justice, which has yet to respond to the Friday filing.
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.
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
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