ACA Agonistes
Court Deals Obamacare Its Biggest Blow Yet
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  • Mark Mazer

    You might wish to correct this statement: ” does not give the federal government the power to provide subsidies to consumers who buy coverage on state-run exchanges.”

  • Boritz

    “Court Deals Obamacare Its Biggest Blow Yet”

    So much for the war on drugs.

  • Andrew Allison

    A bit premature. The 4th District promptly ruled the other way, while the D.C. court left the subsidies in place pending the inevitable appeal. If the ruling is upheld, the chances of Congress changing the language of the law are slim-to-negligible.

  • Corlyss

    National Affairs (nationalaffairs.com) has a timely article on federalism, which the Fed Appeals court is paying slight obeisance to in its decision. It is perhaps worth noting that as appeals courts go, the Fed court’s interpretations carry a little more weight with SCOTUS than others in interpreting federal law; that is all that court does. That is why it is considered an incubator for future justices.

  • stanbrown

    If Obamacare was a popular law, passed by both parties, and drafted after full public debate and participation, fixing small problems in statutory language would be easy. Of course, this is just one more example of how the extreme tactics of the Democrats continue to harm the country.

  • gabrielsyme

    Interesting that the Obama administration apparently intends to ask the DC circuit to review en banc, rather than appealing to the Supreme Court. This strikes me as a recognition that the Democrats can rely on their own appointees to rule in their favour.

    Once the law is known to be partisan, how much longer can government be recognised as legitimate?

    • Andrew Allison

      My thoughts exactly. Fortunately, it’ll go to the Supremes either way. The obvious politicization of the Judicial Branch should be of much more concern than this, or any other individual case.

      • Pete

        It will be a five-four decision with the three dingbats sticking together.

        • Andrew Allison

          Don’t bet on it. Kagan wrote recently that it is the job of the Court to apply laws as written, not re-write them.

          • Corlyss

            You’re looking for consistency? LOLOLOL There’s always an out, some distinguishing feature arising from different facts, for the BS artists that most attorneys are.

          • Andrew Allison

            The question is whether it will be 5-4 as Pete suggests, unanimous (as it has been in other recent cases of Executive overreach), or something in between.

          • Corlyss

            I didn’t miss the point. You’re expecting Kagan to be consistent with her position on the Affirmative Action decision, right? To make it a 6-3 instead of 5-4?

          • f1b0nacc1

            I agree with Corylss that it is unlikely that Kagan (an apparatchik if there ever was one) will show much consistency, but she isn’t the important vote. Kennedy is, and he is very likely (given his record) to vote to support the plantiff (Halbig) on this one. Roberts vote on the last EPA ruling suggests that he isn’t too thrilled about giving too much latitude to the executive branch to rewrite legislation after passage, so I suspect that we are looking at a 5-4 ruling.
            One possible way that this might change is if Kagan and/or Sotomayor (who seems to dislike being on the losing side of issues like this) will cut some sort of deal with the majority by agreeing to vote with them in exchange for watering down the decision. We have seen this several times this term, and in fact I see it as something of a healthy sign…compromise!

          • Andrew Allison

            The law as written either permits the subsidies or not, and if not it’s the job of Congress, not the Supremes to do something about it. How can they water it down? I don’t think that the Court has the authority to, for example, give the States a year to set up exchanges. I expect at least seven votes in favor of the plaintiffs.

          • f1b0nacc1

            Perhaps you are misunderstanding my point. I don’t expect (or desire) the SCOTUS to water down the law, they should eliminate it entirely by requiring that it be executed as written. With that said, however, the scope and intensity of their decision IS a matter for compromise, and thus might be fruitfully subjected to a bit of horse-trading.
            You are correct that there should be about 7 votes for the plaintiff (I have no hope whatsoever for Ginsburg or Breyer, but you never know…), but given the politics of the court, such a result is unlikely without some compromise. A decision that confines itself to this particular part of the law, for instance, without a broader debate about the interpretive powers of the bureaucracy, might well ‘peel off’ 1 or 2 votes from the dark side, and thus given the decision a bit more political heft.
            A final point, since this decision will almost certainly come down in the summer of 2016, perhaps it would be best for a 6-3/7-2 decision in the run-up to an election, n’est-ce pas?

          • Andrew Allison

            I understood you perfectly. I was simply addressing the horse-trading question. I’ve been thinking about your final point. My reading is that the Administration went for en banc rather than going straight to the Supremes precisely in order to delay the decision which they anticipate for as long as possible.

          • f1b0nacc1

            Precisely correct (re: why the Administration went the en banc route). Keep in mind, if the other cases (Indiana(?) or Oklahoma) favor the plaintiff, then the en banc ruling becomes largely nugatory, as everything goes to the SCOTUS much more quickly.

          • Andrew Allison

            Speaking of horse-trading, the en banc hearing also has a problem, namely. do they really want to get slapped down by the Supreme Court and thereby exposed as partisan hacks? It’s going to be fascinating. Meanwhile, I trust that Congress will instruct the IRS to prepare to recover the improper subsidies should the Court decide that they are illegal (which many of them will turn out to be anyway if the declared income is ever compared with a tax return).

          • f1b0nacc1

            If I had to hazard a guess, I would be rather surprised if the 1st Circuit cared at all if they were slapped down by the SCOTUS or not. Remember that this is easily the most politicized court in America, and it is heavily Democratic (and a particularly ‘Blue’ variety of Democratic at that) in its makeup. They know why they are there, and what they have to do.
            As for Congress, as long as Dirty Harry is majority leader, what the House does or doesn’t do is likely to be irrelevant even as a gesture. If, on the other hand, the GOP gets control of the Senate (about a 60/40 change I think…though much can change between now and November), you can bet that some legislation of that sort will be attached to a must pass appropriation almost as soon as the dust settles. Remember though, the IRS will have numerous dodges that they can use to avoid actually executing those instructions. foremost among them that they don’t take orders from Congress, but rather the president.

      • Corlyss

        SCOTUS has been a pretty weak and feckless weapon ever since the 1936 court packing threat, which turned a formidable lion into a weak and sickly kitten.

    • Fat_Man

      The en banc procedure will be used as the Supreme Court will not accept jurisdiction until several appeals courts have ruled. Further, SCOTUS is on vacation until October.

      I doubt that this case would be decided in the next term. I assume that it will be in the 2015/16 term.

      • f1b0nacc1

        Fine by me. I would rather see this come to the court in the 2016 election year when the Dems will actually have to pay some sort of price for defending it.

    • Corlyss

      “Interesting that the Obama administration apparently intends to ask the DC circuit to review en banc, rather than appealing to the Supreme Court.”
      It’s called playing for time. The longer they have to shovel money out the door, the exponentially more difficult it will be to reel back the subsidies. Besides, going to the full court is routine and usually preferred to going directly to SCOTUS from a panel decision.

      • f1b0nacc1

        Perhaps, but if the SCOTUS rules against them (and I believe that it will), they will have a hard time continuing the subsidies no matter how ‘addicted’ their LIVs are.

        • Corlyss

          I would agree but we underestimate SCOTUS’ willingness to avoid unpleasantries with the executive and the legislature branches at our peril. They are geniuses at avoiding a fight that would produce credible existential threats to the Court. It has endured existential assaults in the past and doesn’t want repeats. In the first decade of the 19th century Congress was so angry at SCOTUS, it refused to fund the court for several terms, and in the 1930s FDR successfully cowed SCOTUS into horrible decisions on the expansion of federal power with the threat of court packing. The 3 judges for the DC Circuit that Reid rammed thru only by destroying filibuster for nominations, has already been labeled “court packing” because they were not necessary for the court to work its case load. Doofus has shown many times that he will do anything to get his agenda thru no matter what institutions he has to destroy. Don’t forget that there were rumors that Roberts upheld the constitutionality of the ACA only because the administration had something on him it used to blackmail him.

          • f1b0nacc1

            Perhaps so, but you presume that the only danger to the court comes from the executive, and this may not be the case. The Justices are also deeply protective of the court’s credibility, it’s institutional capital, if you will, and might very well see this case as essential to protect that. After all, if the executive can rewrite laws without the legislature, they don’t need the courts either, and this would fatally wound the court’s rationale for influence.
            In any event, we will see within a fairly short time. There are two other cases (Indiana(?) and Oklahoma) where support of the plaintiff would bring them into conflict with the 4th Circuit, thus making an en banc hearing irrelevant. In addition, even an en banc ruling that vacated the Halbig decision might do so on a basis that would prompt further review.
            It should be interesting….

    • Thirdsyphon

      That’s an excellent question, and one that was raised with considerable eloquence in two of the dissents from Bush v. Gore. If the Court becomes a mere instrument of politics, what then is the source of its legitimacy?

  • Corlyss

    According to Totenberg, if the full DC court takes up the case which is likely, then the DC court panel decision is void and therefore nonexistent. Which would leave the 4th Circuit’s decision as the only decision on the law, and without a dispute among the circuits, there’s less pressure on SCOTUS to take it up soon.

    • Thirdsyphon

      That’s smart analysis, and I think it’s correct. The Supremes won’t rule on this issue unless they’re forced to.

    • f1b0nacc1

      While Totenberg is correct (hey, stopped clocks and all that…), I am not as confident that the SCOTUS won’t take it up anyway. The court’s rulings this term have shown an increasing level of impatience with the administration’s high-handedness, and I wouldn’t be surprised at all to see them accept the case on its merits, rather than as a conflict of courts issue.
      Also, remember that there are several other cases exactly like this working their way through the system, several of which may be ruled on in the next 6-9 months.

  • FriendlyGoat

    After John Roberts’ prior decision that yes, America can have Obamacare, he is very unlikely to side with this technicality to eliminate federal subsidies after the law is in motion. I know he is one of the problematic five male Republicans on the Supreme Court who all happen to belong to a single church (Catholic) and often act together in favor of corporations against people, but I don’t think even he has much interest in appearing rudderless and inconsistent. It’s not like the Court was unaware of how the subsidies would operate.

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