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“The Limited Role Of The Courts”: Why Obamacare Probably Isn’t Doomed

The Affordable Care Act took a potentially serious hit today when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the  three-dozen states where the federal government runs a health insurance exchange.

But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely  be ultimately resolved by the Supreme Court. And the administration probably will come out ahead in the end.

The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State.”

The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.

But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.

Here’s why. Other provisions of the statute reference an exchange “established by [a] State,” but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.

It also makes some difference that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges.

We won’t have a final answer for a while. The parties can ask all the judges of both of the courts of appeals that issued today’s rulings to rehear the case. The administration has the better chance, because recent appointments to the court that struck down the rule tilt the court to the left. But it may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue.

The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If the case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same5-to-4 majority that rejected the major constitutional challenge to the law two years ago.


By: Tom Goldstein, Appellate Advocate, best known as one of the nation’s most experienced Supreme Court practitioners, Co-founder and Publisher of SCOTUSblog; The Washington Post, July 22, 2014


July 23, 2014 Posted by | Affordable Care Act, Health Exchanges, Obamacare | , , , , , | 1 Comment

“The Party Of Zilch”: The GOP Is Out To Destroy The Country

Yes, the headline is rather hyperbolic. It’s as over-the-top as some of President Obama’s most unhinged critics, who believe he is running the nation without care or concern for the Constitution. But when you look at the actions of the Republican Party, particularly its members in Congress, my headline seems appropriate.

Three different pieces highlighted how the GOP is grinding just about every sector of the federal government to a halt. And it is doing it through a cynical combination of obstruction, saying no and failing to have viable alternative proposals worthy of national debate. Whatever political gains Republicans achieve in the short-term come at the long-term expense of the country. That’s simply unacceptable.

Even though the Affordable Care Act (a.k.a. Obamacare) is much more than a Web site, the disastrous roll out of has done a number on the president’s standing with the American people. According to the latest Post-ABC News poll, Obama’s overall approval rating sits at 42 percent. His 55 percent disapproval rating is the highest of his presidency. This would be the perfect time for the opposition to step forward with those alternative proposals. But the GOP is “The Party of Zilch,” as Ron Fournier so accurately described.

Rather than be the party of solutions in a gridlocked capital, appealing to a leadership-starved public, the GOP is the party of obstruction, ensuring that its putrid approval ratings nose dive apace with Obama’s.

The country needs sensible immigration reform that brings 11 million or so undocumented residents out of the shadows. No, says the GOP

The country needs to tame a massive debt that will be 100 percent of the gross domestic product by 2038 unless Congress raises revenue and trims entitlements. No, says the GOP.

The country needs fair debate and compromise around existential issues such as climate change, income inequality, and a deteriorating 20th century infrastructure. No, says the GOP.

“Other than hard partisans on the left and right, the majority of the public—moderate, fix-it Americans who simply want a sensible government—now have nowhere to turn, because the GOP is the party of nothing,” Fournier correctly concludes.

The New York Times editorial board delivered its own party-of-zilch disquisition using opposition to the ACA as the jumping off point.

What is the Republican alternative to this government program, flawed as it is right now? There is none. Party members simply want to repeal the health law and let insurers go back to canceling policies at the first sign of a shadow on an X-ray. They have no immigration policy of their own. They have no plan that will stimulate job growth. They are in favor only of shutdowns and sequesters and repeals, giving the public no reason to believe they have a governing vision or even a legislative agenda.

That congressional Republicans have no “governing vision or even a legislative agenda” was proven in a Politico story on Sunday. The headline said it all: “House GOP 2014 agenda starts with blank slate.”

Last Thursday, a group of House Republicans filed into Majority Leader Eric Cantor’s Capitol office suite and received a blank piece of paper labeled “Agenda 2014.”

The blank slate just about sums up where Republicans find themselves after a year marked by the first government shutdown in 17 years, futile efforts to repeal Obamacare and the inability to pass spending bills at the levels set by Republican leaders.

As bad as that is, what a Republican aide said is worse. “What we have done so far this year clearly hasn’t worked,” the GOP aide involved in the planning sessions told the Politico reporters. “Cantor wants to take us in a new direction, which is good. The problem is we don’t know where we are headed, and we don’t know what we can sell to our members.” This no way to run an enterprise as large and as important as the United States.

The judicial branch is crippled as qualified nominees go unconfirmed due to “unfair hurdles in the Senate.” As a result, the U.S. Court of Appeals for the District of Columbia, the nation’s second-highest court, has three vacancies on the 11-seat court that handles cases involving federal regulations and national security. Half of the legislative branch is in thrall to a band of right-wing zealots unmoved by facts as much as they are motivated by hatred of the president. As a result, the threat of government shutdowns and default is constant. Inaction on pressing issues is now routine. And the executive branch finds its agenda held hostage by an opposition that schemed against it since before its inauguration in 2009, even though said agenda was approved by the American people — twice.

That the Obama administration has been able to get as much done as it has speaks to the president’s determination to move this nation forward. Yet it’s not enough. Ours is a government that requires two functioning parties that produce good public policy through the necessary friction of governing. Neither party is perfect nor has all the ideas or the answers. But no good comes from a party that gives up completely on governing.

At the end of its editorial, the Times noted, “Democrats may be stumbling right now, but at least they are trying.” Would that Republicans did the same. It is long past time they did.


By: Jonathan Caphart, The Washington Post, November 20, 2013

November 22, 2013 Posted by | GOP, Republicans | , , , , , , , | 1 Comment

“Unable To Win Elections”: They Tried To Break The Federal Government, Now They’re Going After The Courts

The astounding show of Republican recklessness that led to last month’s government shutdown made one thing very clear. The new Republican Party — the one ruled by the Tea Party — isn’t interested in making our government work. They want to break it.

Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America’s economy wasn’t enough, Republicans in Congress have set their sights on a new target: our justice system.

Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation’s second-highest court behind the Supreme Court.

Pillard is one of President Obama’s three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.

One of the most basic functions of the U.S. Senate is to provide “advice and consent” to the president on his nominations to executive agencies and to the federal courts. For most of our country’s history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.

The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court — a duty entrusted to him by the Constitution.

There’s a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers’ rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including “active” judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.

Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush’s nominees to the court and eight of Ronald Reagan’s. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.

To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans — an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees’ legal rights violates the free speech rights of the employers. No, really!

Unable to win national elections, Republicans are trying to hold on to what power they still have — and that includes control of the powerful D.C. Circuit. Just like they couldn’t accept that the Affordable Care Act was the law of the land, the Tea Party won’t admit that Americans chose President Obama to be the one making picks to the federal courts.

The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.

By: Michael B. Keegan, President, People For The American Way, Published in The Huffington Post Blog, November 13, 2013

November 14, 2013 Posted by | Federal Courts, Presidential Nominations, Republicans | , , , , , , | Leave a comment

“What Packing The Court Means”: Chuck Grassley Has No Idea What He’s Talking About

The D.C. Circuit Court of Appeals, the nation’s second highest federal bench, has 11 seats. For the last five years, four of those seats have been vacant, which has not only put a strain on the court, but left Republican appointees as the clear majority, pushing the bench to the right.

And so, yesterday offered something of a breakthrough when the Senate unanimously approved Sri Srinivasan, President Obama’s first confirmed judge to the D.C. Circuit. That leaves three vacancies on the bench, and the White House intends to send nominees for those slots to the Senate soon.

For Sen. Chuck Grassley (R-Iowa), that’s a problem. Indeed, Dylan Matthews noted yesterday that Grassley believes rascally Democrats and the Obama administration are trying to “pack the court” through a “court-packing” scheme. Grassley was reading carefully from a prepared text, suggesting the Iowa Republican was quite serious about the argument — he repeated it five times.

It fell to Sen. Sheldon Whitehouse (D-R.I.), Grassley’s colleague on the Senate Judiciary Committee, to gently explain that Grassley has no idea what he’s talking about. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, but not seriously pursued.

What we’re talking about in 2013 is very different. There’s a vacancy on the federal bench; the president chooses a nominee to fill that vacancy; the Senate Judiciary Committee scrutinizes that nominee and sends him or her to the floor; and then the Senate’s full membership has an opportunity to vote “yea” or “nay” on confirmation.

Chuck Grassley sees this as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance.

Postscript: I should note that if Senate Republicans reclaim the majority after the 2014 midterms, Grassley would become chairman of the Senate Judiciary Committee, despite his apparent confusion on these issues.


By: Steve Benen, The Maddow Blog, May 24, 2013

May 25, 2013 Posted by | Federal Courts, Federal Judiciary | , , , , , , | Leave a comment

“The Influence Of Money”: The Road To Total Political Domination By The Wealthy

The United States Supreme Court on Tuesday agreed to hear the case that opens the door to the final destruction of the campaign finance laws that place a limit on how much money an individual can contribute directly to a federal candidate or national political party.

Now that the infamous Citizens United case, decided in 2010, has removed limits on how much a corporation, union and individual can contribute to groups that are ‘unaffiliated’ with candidates and political parties—leading to the creation and domination of the Super PAC—the Court, by agreeing to hear yet another challenge to campaign finance laws, is poised to take the next step toward finishing off all campaign limits by freeing individuals to give candidates and their political parties unlimited sums of money.

As the law currently stands for calendar years 2013-14, individual donors are limited to giving contributions to candidates for federal offices up to a maximum of $123,200 during an election cycle (two years) with a limit of $2,600 to an individual candidate, $32,400 to a national political party, $10,000 to a state political party and $5,000 to any other political committee affiliated with a candidate or political party.

However, an Alabama political donor—joined by the Republican National Committee—believes that the limitation of $123,200 placed on an individual donor during an election cycle is ‘unconstitutionally low’ and wants the highest court in the land to remove the cap.

The case now set to come before the Supreme Court will challenge only the total contribution cap and does not go after the limits placed on money given to individual candidates and political parties. However, based on the Court’s ruling in Citizens United, it is widely anticipated that were the Supreme Court to side with the plaintiffs in this matter and end the limits on the total contribution amount, the Court will have telegraphed its intention to do away with limitations of any kind or nature—making it only a matter of time until limits on individual contributions to candidates and political parties are also tossed into the dustbin of history.

While ending the existing limitation would put political parties on an even keel with the Super PACs in the race for big money, it would also mean the latest evisceration of the campaign finance limits put in place during the 1970’s when Congress reacted to the growing influence of money in politics—money that placed wealthy, individual donors in a position of undue influence over the nation’s elected officials.

The case that will now be heard by SCOTUS was argued last year in the United States Court of Appeals for the District of Columbia Circuit where a three judge panel ruled that the challenged campaign limit laws were, indeed, constitutional. In issuing the Circuit Court ruling, Judge Janice Rogers Brown noted that the Supreme Court had previously held that limiting an individual’s political contributions had only a marginal effect on that person’s freedom of speech and that it was within Congress’ authority to place such limits on individual contributions.

Judge Brown added, “Although we acknowledge the constitutional line between political speech and political contributions grows increasingly difficult to discern, we decline plaintiffs’ invitation to anticipate the Supreme Court’s agenda.”

The Supreme Court has now accepted that invitation, leading many experts to worry that the latest blow to campaign finance laws in about to descend.


By: Rick Ungar, Op-Ed Contributor, Forbes, February 20, 2013

February 24, 2013 Posted by | Campaign Financing, SCOTUS | , , , , , , , | 1 Comment


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