Arguments

Halbig: The Judicial Right Takes Another Shot at Obamacare

Today's ruling on Obamacare subsidies—a new height in right-wing judicial activism —is a dark, shameful day for American law.

By Nathan Pippenger

This morning’s astonishing ruling from the D.C. Circuit decided—against logic, against any semblance of judicial modesty—that the Affordable Care Act does not authorize subsidies for health insurance plans purchased on the federally run exchanges, currently operating in the 36 states that decided not to form their own exchanges. If the ruling were to go into effect (which it won’t yet—other federal courts still haven’t weighed in, and the Supreme Court probably will too), nearly five million Americans would see their premiums increase by an average of 76 percent. In its 2-1 ruling, the Court—following the passage wherein it debated the finer nuances of how many angels can fit on the head of a pin—considered the government’s argument that, textual ambiguities aside, it is manifestly clear that the law’s drafters never intended to arbitrarily deny subsidized health care coverage to Americans who happened to live in states that would turn out to decline to set up their own exchanges. In short: Although there’s a bit of grey area in the text, a holistic look at the law’s purpose and goals makes its meaning clear. Rejecting that argument, the Court muses: “Finally, turning to the ACA’s purpose and legislative history, we find that the government again comes up short in its efforts to overcome the statutory text. Its appeals to the ACA’s broad aims do not demonstrate that Congress manifestly meant something other than what section 36B says.”

In response, allow me to suggest that when Congress named the law the Affordable Care Act (ACA), it did in fact “manifestly mean” to provide Americans with affordable care. Josh Marshall calls this ruling “corruption”—not of the bribery sort, but a sign of deep institutional rot, of two judges for whom the label “activist” sounds downright quaint. The ACA is designed to provide subsidies for health care, full stop. As Marshall writes: “Any suggestion that the law was intended to do anything else is absurd on its face. But the two judges ruling in the majority in this case are essentially saying, ‘Who cares? You should have written this one sentence more clearly. End of story.’” Likewise, Brian Beutler writes that this lawsuit, all along, was a “fundamentally dishonest solicitation of right-wing judicial activism,” and that right-wing judges have happily accepted the invite.

The question now is: What happens next? Today, Obama Administration officials are saying that Americans in the 36 states with federal exchanges will continue to receive their subsidies until the entire D.C. Circuit—which currently has a Democratic majority—reviews the decision, probably this fall. It’s likely that the entire court will reverse today’s ruling. Another circuit court today, hearing the same challenge, ruled against the conservative challengers. There are two more challenges in federal court. If the final result (including the D.C. Circuit’s likely reversal of today’s ruling) isn’t unanimous—that is, all four federal courts coming down on the same side—then a “circuit split” will have occurred, and the Supreme Court will almost certainly step in to resolve the matter.

I’d like to be an optimist about that scenario. As Harvard Law School’s Laurence Tribe recently noted, the four liberal justices “have long believed in interpreting ambiguous statutes in a way that carries out their underlying purposes and makes them workable. Thus those four would almost certainly reject the challengers’ reading of the ACA.” Four of the Court’s conservatives, however, have already signaled their desire to destroy the law—consequences for the uninsured be damned. The decisive vote will be up to Chief Justice Roberts, and it’s impossible to know what his move will be. On the one hand, he had the chance to kill the ACA a few years ago—on grounds that, while implausible, look rock-solid in comparison to this latest nonsense—and he didn’t go all the way (though he did do some damage). Does he regret that choice? Would he take a new opportunity to gut the law?

It may depend on whether, in the end, the Chief Justice can summon the modesty and honesty that today’s majority lacks. Just take the decision’s galling conclusion, which sheds crocodile tears for the uninsured and bubbles with cant about democratic legitimacy and the role of the courts:

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our 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, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.

Start with the majority’s mock concern for the uninsured who would suffer as a result of this ruling taking effect—suffer, that is, until “states that wish to can set up Exchanges,” as though Obamacare’s diehard opponents were just jumping to do so, and the task had until now somehow slipped their minds. Next comes a reference to respecting “legislative supremacy,” paired with the claim that the law’s text is just plain and clear, and so naturally the court’s hands were tied. (This claim, by the way, ignores decades of precedent giving federal agencies leeway to reasonably interpret ambiguous legislative language, as Judge Edwards noted in a searing dissent: “Because IRS and HHS have been delegated authority to jointly administer the ACA, this case is governed by the
familiar framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under Chevron, if ‘the statute is silent or ambiguous with respect to the specific issue,’ we defer to the agency’s construction of the statute, so long as it is ‘permissible.’ Id. at 843. The Government’s permissible interpretation of the statute easily survives review under Chevron.”)

Then, that final, sniggering line: “This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.”

The mind boggles attempting to understand what, if any, “democratic interests” the majority thinks it has advanced. The American people elected Barack Obama, who campaigned on a pledge to enact universal health care, in 2008. The Congress passed, and the president signed, the ACA in 2010. In 2012, the Supreme Court declared the law constitutional. Later that year, Mitt Romney ran for president promising to repeal it, and he lost. The institutions of our democratic republic have spoken on this law, and they have done so many times. And even if they hadn’t, a clear majority of Americans want the law kept or even expanded—not gutted or repealed. When Congress wrote the law, its goals were clear, and its language was certainly clear enough. The people who wrote the law even filed a brief making this point perfectly clear to anyone honest enough to listen. This concluding genuflection to “democratic interests” insults the intelligence of every thinking American. But even worse, it insults every sick, needy American. Whatever the fate of this lawsuit, whatever the actions of the Supreme Court, today is a dark day for the integrity of the D.C. Circuit—and, by extension, for the American judiciary. What a shame.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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