“Legislative Interpretations”: Did Those Republican Judges Ever Go To Law School?
Six federal judges ruled Tuesday on the legality of subsidies being provided for low-income subscribers under so-called Obamacare. The two with solid Republican credentials found the program illegal.
With all due respect to these members of the esteemed federal bench, I have to question whether they really went to law school – or, if they did, whether they ever tended a class in legislation. Because if they did, they should have been aware of two fundamental principles of legislative interpretation: (1) courts should defer to the obvious intent of the legislature; and (2) they should also defer to the interpretation of legislation provided by the administrative agency charged with its enforcement.
The statute provides for health exchanges in the states to run the program, and provides a back up for federal exchanges to administer them when the states decline to participate. The statute includes a provision that allows the Internal Revenue Service to provide tax subsidies to those enrolled in the “state” exchanges.
It is clear that Congress never expected 36 states (mostly those controlled by Republican governors or legislatures) to opt out. It should be equally clear that Congress never intended to deny subsidies to those citizens living in opt-out states.
But the two Republican judges sitting on the U.S. Court of Appeals for the District of Columbia, blindly adopted the bizarre argument of the law’s challengers that under a literal reading of the statute only state enrollees were entitled to the subsidies.
On the same day, another federal appeals court sitting in Virginia unanimously ruled the other way. In that decision, Judge Andre Davis ridiculed the argument adopted by the two majority judges in D.C. He wrote that “[plaintiffs want to] deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose… could not be more clear.” But that was precisely the “tortured, nonsensical” position taken by the D.C. duo to the dismay of their colleague, the senior judge on the D.C. Circuit, Harry Edwards.
Then comes the Chevron doctrine. Chevron is a long-standing doctrine established by the Supreme Court that it was the obligation of courts when interpreting statutes to give deference to the interpretation of the statute by the administrative agency entrusted by Congress with its implementation.
In this instance, it was the Internal Revenue Service which had primary responsibility for implementing the health care subsidies. But the D.C. majority ignored the IRS interpretation.
To be fair to the D.C. majority, there is another doctrine which they chose to follow. It is called “textualism,” and its primary exponent is Justice Anton Scalia, the legal guru of conservatism. And this principle seems to say implement the clear terms of the statute no matter how absurd – or “nonsensical” – the result. But as Scalia’s critics like to point out, he generally invokes that principle only when it brings about a result he is ideologically comfortable with.
Obviously, these cases will have to be reconciled by the United States Supreme Court. And, fortunately for the millions of persons entitled to health care subsidies in the 36 states with federal health exchanges, Scalia’s “textualism” does not have a lot of adherents, even among his conservative colleagues on the high court.
By: Frank Askin, Distinguished Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School-Newark; The Huffington Post Blog, July 30, 2014
“Judicial Neutrality Is Nothing But A Farce”: The Latest ObamaCare Decision Makes It Official, We Need More Liberal Judges
After the passage of ObamaCare in 2010, dozens of conservative wonks, activists, and lawyers began poring over the text of the law, trying to find some legal foothold to overthrow as much of it as possible. First they argued that the law’s individual mandate was unconstitutional in NFIB vs. Sebelius, which was rejected by the Supreme Court in 2012. However, the decision weakened the law by making its expansion of Medicaid optional, which led most conservative states to reject it and deny coverage to millions of poorer Americans.
Then, in Burwell vs. Hobby Lobby, conservatives attacked the scope of the law’s mandated coverage, arguing that the inclusion of certain kinds of contraception violated the Religious Freedom Restoration Act. That one they basically won, though the damage was minimal.
You’ll know these efforts by what conservatives usually call them: “judicial activism.” It paid off again today, with a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit dealing a sharp blow to ObamaCare’s subsidy system. Adrianna McIntyre explains:
The suit alleges that subsidies should only be available in states that set up their own insurance exchanges, based on the text of the Affordable Care Act. The government can still appeal, but if it ultimately loses the case at the Supreme Court, it’s possible that federal subsidies will no longer be available to help make insurance affordable in over 30 states.
Due to what appears to many outside observers to have been poorly crafted legislative language, Congress arguably wrote a sentence that provides subsidies exclusively to state-based exchanges and not to federally facilitated ones, even while subjectively intending to provide subsidies in both cases. [Vox]
Now, Halbig v. Burwell is only a preliminary ruling. The government probably will request an “en banc” ruling before the entire appellate court, which leans to the left — thanks to Majority Leader Harry Reid (D-Nev.) pushing through filibuster reform that filled its long-empty seats with President Obama’s appointees. What’s more, another ruling hours later by the Fourth Circuit Court of Appeals in Richmond, Virginia, upheld the ObamaCare subsidies, deferring to the government’s interpretation of the language to mean that it is authorized to dole out those subsidies. It’s possible this will all end up before the Supreme Court, increasingly America’s only policy-making body of consequence.
God only knows what the high court will decide. Thirty-six states did not create their own ObamaCare exchanges, which means that upholding Halbig would swipe the subsidies from something like 87 percent of people who bought insurance on the federal exchange — about 4.7 million of them. Premiums would shoot up by an average of 76 percent, basically crippling the law. An individual mandate is unjustifiable without subsidies for people who can’t afford insurance. Chief Justice John Roberts might balk at destroying the keystone achievement of the Obama presidency on what amounts to a trivial technicality — or he might not.
What we do know is that the concept of judicial “neutrality” is nothing but a farce. The conservative goal is to pick at any possible legal thread and mobilize the judicial system to achieve their aim of destroying the law and throwing millions of people off their health insurance, even if the underlying legal rationale is wildly tendentious or weaselly or undemocratic. There will be Republican-appointed judges who will buy such arguments wholesale, as evidenced by the conservative majority in Halbig, which didn’t even bother to hide their scorn for the government’s case.
Indeed, half the reason so many states don’t have exchanges in the first place is that a Cato Institute analyst named Michael Cannon has been crossing the nation telling them not to, with the deliberate object of maximizing the damage to ObamaCare if the courts endorsed Halbig-style reasoning.
Liberals need to jettison the impossible idea of neutral, objective judges, and just get avowed lefties appointed wherever possible. As conservatives have demonstrated, that’s simply how the system works.
By: Ryan Cooper, The Week, July 22, 2014
“It’s Not A Game, It’s People’s Lives”: What Today’s Obamacare Ruling Reveals About The GOP
Today in a two-to-one decision a three-judge panel of the Court of Appeals for the D.C. Circuit delivered Republicans perhaps their biggest victory yet in their ongoing legal battle to destroy the Affordable Care Act. This case is far from over — it will probably be appealed to the full appeals court (where today’s decision is likely to be reversed) and then to the Supreme Court. But it demonstrates just how willing Republicans are to lay waste to Americans’ lives if it means they can strike a blow at Barack Obama and his health law.
In some of their challenges to the ACA, there was a legitimate philosophical or practical point Republicans were making. You or I might think the idea that a mandate to carry insurance constitutes the death of liberty is ridiculous, but at least it was a substantive objection. Not so in this case, Halbig v. Burwell. Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.
In a section of the ACA concerning the subsidies given to low- and middle-income people to buy insurance on the exchanges, the legislation refers to subsidies provided through “an Exchange established by the State.” Since over half the states didn’t create their own exchanges and ended up with the federal exchange, the plaintiffs argue that no one in those states should be eligible to receive subsidies. If they’re successful, it would mean that if you live in Kentucky, which has a state exchange, you can get federal subsidies to buy insurance, but if you live next door in Tennessee, which uses the federal exchange, you can’t.
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.
But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
If you want to read a comprehensive analysis of how legally and logically absurd this decision was, I’d recommend this one by Ian Millhiser. Cases like this often turn on Congress’ intent in writing legislation, and in this case there is no question about that intent — at no point in the debate or drafting or voting did anyone say that if a state chose to use the federal exchange then the people in that state wouldn’t get subsidies. But if you read the majority’s decision, you can see the two Republican judges positively luxuriating in the drafting error for page after page, exploring every possible way in which it could trap the government into denying subsidies to people.
Most ridiculously, they assert that there’s just no way to know whether Congress actually intended that people in states using the federal exchange should get subsidies, so their intent can only be inferred by the phrase “established by the State.”
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
By: Paul Waldman, Contributing Editor, The American Prsospect; Published at The Plum Line, The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
“A Nuclear End To Republican Denial”: Seeing The World As It Is Rather Than Pining For A World That No Longer Exists
Those who lament the Senate Democrats’ vote to end filibusters for presidential nominations say the move will escalate partisan warfare and destroy what comity is left in Congress. Some also charge hypocrisy, since Democrats once opposed the very step they took last week.
In fact, seeing the world as it is rather than pining for a world that no longer exists is a condition for reducing polarization down the road. With their dramatic decision, Senate Democrats have frankly acknowledged that the power struggle over the judiciary has reached a crisis point and that the nature of conservative opposition to President Obama is genuinely without precedent.
What happened on Nuclear Thursday has more to do with the rise of an activist conservative judiciary than with the norms of the Senate. From the moment that five conservative justices issued their ruling in Bush v. Gore, liberals and Democrats realized they were up against forces willing to achieve their purposes by using power at every level of government. When the Bush v. Gore majority insisted that the principles invoked to decide the 2000 election in George W. Bush’s favor could not be used in any other case, they effectively admitted their opportunism. Dec. 12, 2000, led inexorably to Nov. 21, 2013.
Bush v. Gore set in motion what liberals see as a pernicious feedback loop. By giving the presidency to a conservative, the five right-of-center justices guaranteed that for at least four years (and what turned out to be eight), the judiciary would be tilted even further in a conservative direction.
Bush was highly disciplined in naming as many conservative judges as he could. His appointments of Chief Justice John Roberts and Associate Justice Samuel Alito bolstered the Supreme Court’s conservative majority. The court later rendered such decisions as Citizens United, which tore down barriers to big money in politics, and Shelby County v. Holder, which gutted a key part of the Voting Rights Act. Both, in turn, had the effect of strengthening the electoral hand of conservatives and Republicans.
With the conservatives’ offensive as the backdrop, Senate Democrats and liberals on the outside revolted in 2005 against the Republican threat to use the nuclear option when the GOP controlled the Senate. Progressives felt they had no choice but to throw sand into the gears of a juggernaut.
Liberals said things eight years ago that are being used by conservatives to accuse them of hypocrisy now. I didn’t have to look far for an example of what they’re talking about.
In a column in March 2005, I called the GOP’s effort to speed the confirmation of conservative judges “a blatant effort to twist the rules” that ignored “the traditions of the Senate.” I might take back the “traditions of the Senate” line, a rhetorical attempt to call conservatism’s bluff. But what animated my argument then is the same concern I have now: This era’s conservatives will use any means at their disposal to win control of the courts. Their goal is to do all they can to limit Congress’s ability to enact social reforms. At the same time, they are pushing for measures — notably restrictions on the right to vote — that alter the electoral terrain in their favor.
And it is simply undeniable that in the Obama years, conservatives have abused the filibuster in ways that liberals never dreamed of. Senate Majority Leader Harry Reid cited the Congressional Research Service’s (CRS) finding that in our history, there have been 168 cloture motions filed on presidential nominations. Nearly half of them — 82 — happened under Obama. According to CRS, of the 67 cloture motions on judicial nominees since 1967, 31 occurred under Obama. Faced with this escalation, senators long opposed to going nuclear, among them Reid and California’s Dianne Feinstein, concluded it was the only alternative to surrender.
Republicans gave the game away when all but a few of them opposed Obama’s three most recent appointments to the Court of Appeals for the D.C. Circuit not on the merits but by accusing the president of trying to “pack the court.” In fact, Obama was simply making appointments he was constitutionally and legislatively authorized to make. His nominees were being filibustered because they might alter the circuit court’s philosophical balance. The GOP thus demonstrated beyond any doubt that it cares far more about maintaining conservative influence on the nation’s second most important judicial body than in observing the rules and customs of the Senate.
This is why the Senate Democrats’ action will, in the end, be constructive. The first step toward resolving a power struggle is to recognize it for what it is. The era of denial is finally over.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, November 24, 2013
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