In July, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued a ruling that threatened the future of President Obama’s Affordable Care Act. By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.
This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.
The transformation of the D.C. Circuit has been replicated in federal courts around the country. Obama has had two hundred and eighty judges confirmed, which represents about a third of the federal judiciary. Two of his choices, Sonia Sotomayor and Elena Kagan, were nominated to the Supreme Court; fifty-three were named to the circuit courts of appeals, two hundred and twenty-three to the district courts, and two to the Court of International Trade. When Obama took office, Republican appointees controlled ten of the thirteen circuit courts of appeals; Democratic appointees now constitute a majority in nine circuits. Because federal judges have life tenure, nearly all of Obama’s judges will continue serving well after he leaves office.
Obama’s judicial nominees look different from their predecessors. In an interview in the Oval Office, the President told me, “I think there are some particular groups that historically have been underrepresented—like Latinos and Asian-Americans—that represent a larger and larger portion of the population. And so for them to be able to see folks in robes that look like them is going to be important. When I came into office, I think there was one openly gay judge who had been appointed. We’ve appointed ten.”
The statistics affirm Obama’s boast. Sheldon Goldman, a professor at the University of Massachusetts at Amherst and a scholar of judicial appointments, said, “The majority of Obama’s appointments are women and nonwhite males.” Forty-two per cent of his judgeships have gone to women. Twenty-two per cent of George W. Bush’s judges and twenty-nine per cent of Bill Clinton’s were women. Thirty-six per cent of President Obama’s judges have been minorities, compared with eighteen per cent for Bush and twenty-four per cent for Clinton. Obama said that the new makeup of the federal bench “speaks to the larger shifts in our society, where what’s always been this great American strength—this stew that we are—is part and parcel of every institution, both in the public sector as well as in the private sector.”
Beyond diversity, the story of Obama’s influence on the courts is more complex. Indeed, it could serve as a metaphor for his Presidency: symbolically rich but substantively hazy. Obama took office after years of intense conservative focus on the courts. President George W. Bush spoke often of the need for judges who “will strictly apply the Constitution and laws, not legislate from the bench.” The conservative agenda included limiting abortion rights, ending racial preferences, and lowering barriers between church and state. Obama has shrunk from an ideological battle with conservatives on these constitutional issues. Claims for his judges are grounded in their personal integrity and professional competence. Notwithstanding their qualifications, many of his appointees have drawn fierce opposition from Senate Republicans. In those battles, too, where his judicial legacy has been at stake, the President has chosen to remain largely above the fray.
To the extent that there is an Obama legal legacy, it centers on gay rights and voting rights, subjects that the President addresses more with caution than with passion. Obama served as president of the Harvard Law Review (Class of 1991), and taught at the University of Chicago law school for more than a decade. He was never exactly a legal academic; he didn’t write law-review articles or seek a tenure-track job. He taught classes once a week while practicing law and, later, while serving in the Illinois state senate, in Springfield. When it comes to the law, Obama may never have been a full professor, but he remains fully professorial.
I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage.
In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him.
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
“The bulk of my nominees, twenty years ago or even ten years ago, would have been considered very much centrists, well within the mainstream of American jurisprudence, not particularly fire-breathing or ideologically driven,” Obama went on. “So the fact that now Democratic appointees and Republican appointees tend to vote differently on issues really has more to do with the shift in the Republican Party and in the nature of Republican-appointed jurists. . . . Democrats haven’t moved from where they were.”
This is how Obama has attempted to define his Presidency—as an exemplar of common sense set against the extremism of the contemporary Republican Party. He has had the same mixed success in making this argument for his judges as he has had on most other issues during the past six years.
Ruth Bader Ginsburg, in a recent interview published in Elle, said that she would not yet step down from the Court. “If I resign anytime this year,” she argued, Obama “could not successfully appoint anyone I would like to see in the Court.”
I asked Obama if Ginsburg was right about his political weakness. “Well, we’ve got a pretty good track record,” he said. “We’ve got a couple of Supreme Court Justices confirmed who I think are doing outstanding work. My sense is that the Senate necessarily has to treat the Supreme Court nomination process differently than the circuit- or district-court nomination process—higher profile, people are paying attention.” He found that most people pay little attention to lower-court appointments, but when it comes to the Supreme Court “they have the sense ‘All right, this is big,’ ” and the media cover the story intensely, “which means that some of the shenanigans that were taking place in terms of blocking appointments, stalling appointments, I think are more difficult to pull off during a Supreme Court nomination process.
“Having said that, Justice Ginsburg is doing a wonderful job. She is one of my favorite people. Life tenure means she gets to decide, not anybody else, when she chooses to go.” Asked whether he had any advice about her retirement, Obama replied, with a big smile, “None whatsoever.”
Still, what the President calls “shenanigans” have defined his effort to move his circuit-court and district-court nominations through the Senate. For a politician who is still fairly new on the political scene, Obama has had considerable experience with judicial nominations and confirmations—a subject of great controversy in the past decade. As a senator and as President, Obama has recoiled from the particulars of these fights, leaving others to do the dirty work.
Charles Grassley, the veteran Republican senator from Iowa, dates the conflict between Democrats and Republicans in the Senate over judges to 1987. “It all starts with Bork,” Grassley told me. After contentious Senate Judiciary Committee hearings chaired by Joseph Biden, Ronald Reagan’s nomination of Robert Bork to the Supreme Court was voted down, fifty-eight to forty-two. Four years later, Clarence Thomas’s nomination produced an even more rancorous struggle. Ginsburg was confirmed easily, in 1993, as was Stephen Breyer, in 1994.
The tumultuous end to the 2000 election led to a renewed period of partisan struggle in the Senate over the confirmation of judges, which has never really ended. “Right after Bush was elected, all the Senate Democrats went on a retreat, with these liberal law professors, and they came back and changed the ground rules on judicial nominations,” Jeff Sessions, the Republican senator from Alabama, told me. “There is no question that the Democrats were always the aggressors on judicial nominations.” In particular, Senate Democrats rallied against the nomination of Miguel Estrada, a widely admired Republican lawyer, to the D.C. Circuit. Repeated filibusters forced him to withdraw, in 2003. More than a decade later, his defeat still irks Senate Republicans. “Estrada is the poster child for how the Democrats destroyed the process,” Sessions told me.
Most of George W. Bush’s judicial nominations were easily confirmed, but, in 2005, many Democratic senators decided to make a stand. They objected to several of his circuit-court nominees, and refused to allow votes to take place. The D.C. Circuit—often described as the second most important court in the nation—was the focus of the dispute. Democrats fought the nominations of Janice Rogers Brown, a justice of the California Supreme Court, who had once called Social Security and other New Deal programs “the triumph of our own socialist revolution,” and Brett Kavanaugh, a Bush White House aide who had made his name as a principal author of the Starr report.
There were only forty-five Democrats in the Senate, but that was enough to prevent the nominations from coming to the floor for a vote. Under the Senate rules, it took sixty votes to end a filibuster. In response to the Democratic tactics, Bill Frist, the Majority Leader at the time, threatened to invoke what became known as “the nuclear option,” which would have changed the Senate rules to allow nominations to proceed with a simple majority.
Obama had just been elected to the Senate, and, as he later suggested in his book “The Audacity of Hope,” he viewed the battle with disdain. “I remember muffling a laugh the first time I heard the term ‘nuclear option,’ ” he wrote. “It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations.” In Obama’s account, he supported the efforts of Democratic colleagues, but with reservations. “I doubted that our use of the filibuster would dispel the image of Democrats always being on the defensive—a perception that we used the courts and lawyers and procedural tricks to avoid having to win over popular opinion,” he wrote. “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”
In 2005, a bipartisan group of senators who became known as the Gang of 14 achieved a compromise of sorts. The Republicans agreed to maintain the rules, and the Democrats agreed not to filibuster judicial nominees unless there were “extraordinary circumstances.” The agreement led to the confirmation of almost all of Bush’s nominees, including Brown and Kavanaugh.
That, more or less, was how things stood when Obama became President. Sixty votes were still required to end debate on judicial nominees, but the minority party in the Senate—now the Republicans—was supposed to acquiesce to votes unless the judicial candidate presented “extraordinary circumstances.”
Harry Reid and Barack Obama belong to the same political party but to different worlds. At seventy-four, the Senate Majority Leader is a generation older than the President, and his rough-hewn upbringing, in Searchlight, Nevada, makes him more comfortable with close political combat than with polished phrasemaking. When Reid was a law student, at George Washington University, in the nineteen-sixties, he didn’t spend his spare time on scholarly publications; he moonlighted as a Capitol police officer.
When I visited Reid in his small, elegant office, just off the Senate floor, he spoke wistfully about the first two years of Obama’s Presidency, when Democrats controlled the House of Representatives and enjoyed a filibuster-proof majority in the Senate. “This first Congress, we were very successful. We were successful during the regular Congress, we were really successful in the lame duck,” he told me. But in 2010 the Democrats lost the House and several seats in the Senate, and, as a result, Reid told me, “the last two Congresses have been awful.”
With the House in Republican hands, the chances of passing meaningful legislation diminished to nearly zero, and that, in a peculiar way, put more focus on the issue of judicial nominations. Reid could confirm judges without the assent of the House, so he tried to push through as many nominations as he could. In his view, Republicans have violated the pledge made in the Gang of 14 pact of 2005. Instead of filibustering only in “extraordinary circumstances,” Republicans routinely insisted on sixty-vote majorities to end debate on lower-court judicial nominees. “I regret having been one of the premier movers of that deal we made, stopping the nuclear option,” Reid said. “I wanted to make peace here, I wanted the place to work better. Once they got those people on there—Janice Rogers Brown, a guy named Kavanaugh—they were virtually bringing everything to a standstill.”
Who filibustered more—the Democrats under Bush, or the Republicans under Obama—is disputable. Republicans have used filibusters to stop outright only two of Obama’s judicial nominations: Caitlin Halligan, a former aide to Andrew Cuomo, nominated to the D.C. Circuit; and Goodwin Liu, a Berkeley law professor, nominated to the Ninth Circuit. (Governor Jerry Brown later appointed Liu to the California Supreme Court.) But delays by Republican senators have slowed the confirmation process. “In the scheme of things, the long-term trend here, at least since the mid-eighties, is declining confirmation rates and rising length of time it takes to get nominees on the bench,” Sarah Binder, a congressional scholar at the Brookings Institution, told me.
The Senate’s inability to accomplish anything, including the confirmation of judges, began generating disquiet within Reid’s Democratic caucus. Jeff Merkley, of Oregon, and Tom Udall, of New Mexico, began pressing him to invoke his own nuclear option: to change the Senate rules so that only fifty-one votes, not sixty, were necessary to bring judges up for a vote. This precipitated a generational struggle among Democrats. An older group of senators, including Reid, initially opposed such a major change in the Senate’s rules.
The turning point came last November, when Reid brought to the Senate floor three Obama nominees to the D.C. Circuit: Patricia Millett, Nina Pillard, and Robert Wilkins. (A fourth Obama nominee, Sri Srinivasan, had been confirmed earlier in the year.) As the debate began, it became clear that few Republicans had any substantive objections to any of the nominees. Rather, they argued that the D.C. Circuit heard so few cases that there was no need to fill the vacant judgeships. “The D.C. Circuit is a thorn in my saddle,” John Cornyn, of Texas, told me. He said that Democrats simply wanted to gain a majority for cases when the judges sat en banc.
Reid confronted a dilemma, much as Frist had done in 2005. Like all his Democratic colleagues, Reid scoffed at the Republicans’ rationale for denying the votes. The Republicans had tried to fill those same seats on the D.C. Circuit when Bush was President. It hardly counts as court-packing to fill existing judicial vacancies. But Reid had only fifty-three votes. “I’m a traditionalist here,” Reid told me. “I didn’t want to stir up a lot of trouble.” Then, last November, Reid said, his deputy leader, Richard Durbin, of Illinois, remarked that their Republican colleagues were mocking them. “And I knew that was true,” Reid went on. “He said, ‘They’re just saying to each other, “Hey, he wants to change the rules, let him do it.” ’ Because they didn’t think we had the votes.”
Republican intransigence about the D.C. Circuit nominees finally brought around even the most senior Democrats to the idea of filibuster reform. “I was probably the last person to agree to it,” Patrick Leahy, of Vermont, the president pro tempore of the Senate, and its longest-serving member, told me. “I believe the Senate should be independent, not a rubber stamp of any Administration. But this was a wholesale filibuster, completely unprecedented in two hundred years.” On November 21, 2013, the Senate voted, along party lines, to change its rules so that only fifty-one votes were necessary to bring up for a vote a circuit-court or district-court nomination.
Since then, the Senate votes have cemented Obama’s judicial legacy. With simple majorities, the Senate approved the three D.C. Circuit nominees, who joined a court that has frequently served as a stepping stone to the Supreme Court. (John Roberts, Antonin Scalia, Thomas, and Ginsburg all served on the D.C. Circuit.) The confirmed appeals-court nominees include several judges who conform to the Obama paradigm, in that they are all relatively youthful and impeccably credentialled, with indistinct ideological profiles: David Barron, a forty-seven-year-old Harvard Law School professor, and a former law clerk to John Paul Stevens, to the First Circuit; Pamela Harris, a fifty-two-year-old Georgetown law professor and another former Stevens clerk, to the Fourth Circuit; and Michelle Friedland, a San Francisco attorney active in the legal fight for gay rights (and a former clerk to Sandra Day O’Connor), who is forty-two, to the Ninth Circuit. According to statistics compiled by Sheldon Goldman, of the University of Massachusetts, the average age of Obama’s first-term appeals-court nominees was 53.5 years, and 49.4 for his second-term nominees. This predilection for younger nominees was a strategy of Robert Bauer, Obama’s White House counsel, and his successor, Kathryn Ruemmler. The judges are likely to serve for decades, and they constitute a farm team for prospective Supreme Court appointments.
The subject of voting rights has largely been thrust upon Obama by a conservative judiciary. “You look at something like the Voting Rights Act, which was uncontroversial from a legal point of view among both Republicans and Democrats ten, fifteen, twenty years ago,” Obama told me. “The ruling that struck down key provisions of the Voting Rights Act would have been considered a fairly radical step, but it’s a step that the Supreme Court took.” He was referring to the Shelby County decision, of 2013, which invalidated the portion of the law that required Justice Department review of electoral changes, mostly in Southern states.
In response, Obama offered a modulated criticism. As he put it, “The fact that the Supreme Court didn’t seem to internalize evidence where state election officials or politicians are pretty unabashed in saying we want to keep certain folks from voting, where you have voter-I.D. laws that clearly make it harder for certain folks to vote, despite the fact that there is no actual evidence of fraud—not just a little evidence of fraud but no evidence—as every mathematical assessment, statistical assessment that’s been done shows, it’s a pretext for wanting to shape the franchise for partisan advantage. The fact that that doesn’t seem to have gone into the Court’s reasoning I think makes it an ultimately flawed decision.”
For a long time, the Court has moved toward outlawing all forms of racial preference, including affirmative action, and Obama seems accepting, even supportive, of the change. In 1978, in Regents of University of California v. Bakke, the Court rejected the use of racial quotas in graduate-school admissions. Chief Justice Roberts has made the fight against the traditional civil-rights agenda a cornerstone of his tenure. He wrote nearly a decade ago, “It is a sordid business, this divvying us up by race.”
Specifically, Obama told me that he believes the Constitution permits the use of racial preferences, though only within carefully defined limits. “It’s legitimate to say that when the government takes race into account it should be subject to some oversight by the courts,” he said. Judicial “oversight” of affirmative action has a controversial history. For many decades, starting in the nineteen-thirties, the Court applied “strict scrutiny” to laws that discriminate against racial minorities, and struck down most of them.
Starting in 1995, though, with Adarand Constructors v. Pena, the Court, in an opinion by Sandra Day O’Connor, began applying “strict scrutiny” to laws that favor racial minorities—viewing affirmative action, in effect, as a form of racial discrimination. O’Connor’s opinion drew a stinging dissent from John Paul Stevens. “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination,” he wrote. “Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.” In its embrace of judicial oversight of affirmative action, Obama’s view appears closer to O’Connor’s than to Stevens’s.
By 2003, O’Connor had softened her stance somewhat, writing the majority opinion in Grutter v. Bollinger, which upheld the use of affirmative action as a means to achieve diversity at the University of Michigan Law School. However, she made clear that she regarded affirmative action as a stopgap. In twenty-five years, she wrote, racial preferences would be neither required nor permissible. Again, Obama seemed to agree with O’Connor, in his grudging support for racial preferences in admissions. He said, “If the University of Michigan or California decides that there is a value in making sure that folks with different experiences in a classroom will enhance the educational experience of the students, and they do it in a careful way,” the practice should be allowed. Still, he added, “most of the time the law’s principal job should be as a shield against discrimination, as opposed to a sword to advance a social agenda, because the law is a blunt instrument in these situations.”
Obama reiterated his belief that the biggest issues concerning race are “rooted in economics and the legacy of slavery,” which have created “vastly different opportunities for African-Americans and whites.” He went on, “I understand, certainly sitting in this office, that probably the single most important thing I could do for poor black kids is to make sure that they’re getting a good K-through-12 education. And, if they’re coming out of high school well prepared, then they’ll be able to compete for university slots and jobs. And that has more to do with budgets and early-childhood education and stuff that needs to be legislated.”
I asked the President whether O’Connor’s time line in the Grutter case, now about halfway expired, was accurate. He replied that Justice O’Connor would “be the first one to acknowledge that twenty-five years was sort of a ballpark figure in her mind.” In any event, he said, progress in racial justice and equality would not come principally from the courts. “And that’s where politics comes in,” he said.
Ernst voiced her support for that, as well as supporting legislation that would “nullify” Obamacare in a Iowa State Legislative Candidates survey for Ron Paul’s libertarian-aligned Campaign for Liberty in 2012. It can be viewed here.
The question was: “Will you support legislation to nullify ObamaCare and authorize state and local law enforcement to arrest federal officials attempting to implement the unconstitutional health care scheme known as ObamaCare?” Ernst answered that question as “yes.”
Campaign for Liberty Communications Director Megan Stiles told TPM on Friday that the “yes” answer is what the group is looking for in candidates. Stiles, however, cautioned that the group does not endorse candidates.
"States nullifying federal laws is one way of a check on the balance of federal power," Stiles said. "So that’s an additional way to fight Obamacare. That’s what we’re looking for."
Ideally though, Campaign for Liberty is looking for candidates that sponsor legislation (hence the +/- option on the survey).
Stiles, who wasn’t with the the Campaign for Liberty in 2012, said she would have to get back to TPM on how arrests would be made. She said it would depend on whether what’s being implemented is a state run or federal run healthcare exchange.
"The general idea is that if leaders in the state don’t want to participate in Obamacare then they would nullify the law —as another check on federal power," Stiles said.
Democrats said the survey was just an another example of Ernst being a tea party radical.
"Apparently arresting health officials for giving Iowans access to quality, affordable healthcare is something Joni Ernst believes in. This is just another example of how her radical Tea Party ideas are wrong for Iowa," Iowa Democratic Party spokeswoman Christina Freundlich said in a statement.
In July TPM highlighted that Ernst had previously said that Congress shouldn’t pass laws “that the states would consider nullifying.” Ernst made those comments at a 2013 Iowa Faith & Freedom Coalition forum. States can’t nullify federal laws, as The Daily Beast, which first reported the story, noted.
See the survey below:
The TPM Polltracker average gives Ernst a 4.7 point lead over Rep. Bruce Braley, the Democratic nominee for U.S. Senate in Iowa.
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.