Blind Ideological Justice

Activism on Display in Obamacare Ruling

Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as “an impartial guardian of the rule of law.”

By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.

Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way and upheld the law.

There is a good chance that the eleven-judge D.C. Circuit will take the decision away from its panel -- something it is usually reluctant to do -- and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court’s members disagree with the panel’s convoluted reading of the law and that they want to avoid creating a needless conflict in jurisprudence with the 4th Circuit.

When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for states that bowed out. There are thirty-six states under the federal exchange.

The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.

But the law was not particularly well drafted. It’s not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: “Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. ... Sausage-makers are indeed offended when their craft is linked to legislating.”

Here’s what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.

Poof! There goes the health law in most of the country.

Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.

In ruling to kill the subsidies for an estimated five million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the “incentive story is a fiction, a post hoc narrative” to justify the idea that “Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges.”

The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court’s thirty-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.

Griffith has to pretend that his cramped reading of the written text -- again, a reading utterly disconnected from the reality of the law’s history -- is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.

Edwards’s logic is compelling: that the Griffith decision “defies the will of Congress” and goes along with a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.”

As the 4th Circuit’s Davis put it, the law’s opponents are trying “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.

We cannot use judicial sophistry as an instrument of anti-democratic sabotage.

(c) 2014, Washington Post Writers Group

About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).



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Unfortunately, those two DC appellate judges are taking their cues from their ideolgical betters at the Supreme Court, which wiped out most of the Voting Rights Act and, if we recall, held that states did not have to adopt the Affordable Care Act.  But I think the license given to those two judges to avoid Chevron precedent follows from the recent holding conferring religious beliefs upon corporations.  As a lawyer I am appalled.

As usual  Mr Dionne opines from his own leftist views without any attempt to ferret out the facts or the truth. For anyone interested in those two factors read the following:
"Explicating Exchanges" 

The WSJ article "The ObamaCare-IRS Nexus"  behind the WSJ's paywall

Watch Obamacare Architect Jonathan Gruber Admit in 2012 That Subsidies Were Limited to State-Run Exchanges

For those who do not wish to watch Mr.Grube's complete  presentation;
"The relevant passage deep in the video shows Gruber explaining (emphasis added):

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. But, you know, once again the politics can get ugly around this."

@E.Patrick Mosman (7/25, 10:53 am)  Thanks for your comment.  Here's an update from Jonathan Cohn of The New Republic who reached Gruber by telephone after the video started circulating:

"Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake." As evidence that it was not indicative of his beliefs, he noted that his projections of the law's impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces."

Wow!  The law says tax breaks go to exchanges established by "States."  In a whole other section from where it enables the federal government to set up exchanges that "States" don't.  The DC Circuit ruled what the law says obliges: State-established exchanges get tax breaks, federal ones don't.


Those miserable ideological judges, reading and applying what the law says (as opposed to what Obama wants).


Now, for the real ideological politics.  Congress put tax breaks on State-established exchanges to incentivize (scil. bribe) states to adopt Obamacare, thinking they would.  Well, 36 out of 50 states (2 short of 3/4s) said no.  So now, in order to avoid the penalty Obamacare was ready to inflict on what it thought would be a handful of holdouts (rather than a minority of gullibles that bought this snake oil package) we are now told the IRS can rewrite the law to authorize tax benefits where they weren't (in any nasty, horrible corporation, which has to abide by fiduciary responsibility laws, that would be called misappropriation of funds which even presumably such deep legal scholars as Barack Obama and Eric Holder know would get you jail time) .  And politically, BO knows he can't go back to Congress to fix what he did because the House is not going to give him another lease on life on Obamacare so .... let's blame those ideological judges for applying the law as written.

If the main architect of the law doesn't remember a cardinal principle he articulated before Congress (and not just speaking off the cuff) then the man is my nominee for the Hillary Clinton Candor of the Year Award.

If the main architect of the law doesn't remember a cardinal principle he articulated before Congress (and not just speaking off the cuff) then the man is my nominee for the Hillary Clinton Candor of the Year Award.

 "I honestly don’t remember why I said that,"

I suspect he said it to play political games and to pressure opponents of this travesty, some of said opponents who happen to be Democrat, and voted for Obama; but are able to see through the subterfuge and into the heart of this giveaway to the insurance and drug companies.

Mr Luke Hill,

While not a legislator
Jonathan Gruber from 2003–06 was a key architect of Massachusetts' healthcare reform. In 2006 he became an inaugural member of the Health Connector Board, the main implementing body for that effort. In that year, he was named the 19th most powerful person in health care in the United States by Modern Healthcare magazine. During the 2008 election he was a consultant to the Clinton, Edwards and Obama presidential campaigns. In 2009–10 he served as a technical consultant to the Obama Administration and worked with both the administration and Congress to help craft the Patient Protection and Affordable Care Act (PPACA). Mr.Gruber is probably the most knowledgeable person on the ACA as a chief architect of the bill that Nancy Pelosi famously said," you have to pass the bill to find out what's in it."
Now we are finding out what it is in it and the democrats do not like it.
Check out a few more sites:

And finally Mr Gruber caught on audio of a prepared speech, another



@E.Patrick Mosman - Thanks for your reply, and for the links.  Certainly Mr. Gruber appears to have some explaining to do, and opponents of the ACA aren't wrong for pointing to his 2012 comments and asking for explanations.

That said, ACA opponents have a bigger task if they want to argue that insurance plans purchased through the federally-operated state exchanges were never meant to be eligible for tax credits.  First, there's the absence of contemporaneous evidence (i.e., 2009-10) that ACA supporters intended that in the legislation.  Second, there's the absence---by both supporters and opponents of the ACA---of anyone making that argument when the exchanges were being set up in 2013.  Third, there's the unanimous (so far as I can tell) position of other chief architects of the ACA---including people like John McDonough who worked closely with Gruber on both Romneycare and Obamacare---that their clear intent was that insurance plans sold through exchanges in all 50 states---whether operated by the states or by the feds---would qualify for tax credits.


Luke Hill,

"McDonough who worked closely with Gruber on both Romneycare and Obamacare---that their clear intent was that insurance plans sold through exchanges in all 50 states---whether operated by the states or by the feds---would qualify for tax credits."

Now that Gruber is suffering from a form of Hillary(I don't remember) Clinton  "dementia" what would one expect from his co-worker?  "Clear intent" is not in the ACA law as written so why was it not? It is pretty evident that the architects Gruber, et al, were using the old "carrot and stick" formula in the law as written to reward the States that set up a government approved health care program with tax credits and punish those States that don't by withholding the tax credits.While this type of Federal Government blackmail has worked well in the past they obviously miscalculated the resistance to Obamacare. As no democrat in Congress had the time or inclination to read and understand the law as written and now as the Reverend Wright, President  Obama's spiritual leader for 20 years, said " the chickens have come home to roost", the hen house needs a good cleaning.

I think Mr. Dionne has it backward.  The ideological judges are the ones who want to supplant a supposition about the intent of the law for the actual content of the law.  The judges who are enforcing the actual content of the law may be more than happy to do so because of their ideologies, but at least they are fulfilling their legal role instead of annexing the legal role of the legislative branch.

Legislative intent can be used to resolve minor ambiguities in law.  But legislative intent cannot be used to reinterpret a law in contradiction of the actual text of the law.  That is a capricious and unjust use of power, and a dangerous precedent to set.  Judges should not get to abrogate law as passed in favor of "intent."  That gives the rich and powerful who can more ably impact which judges get elected even more say in governance and disadvantages the poor and weak even more.

This is the consequence of legislators not doing their job.  Part of the legislator's job is crafting the language of a law to ensure that the text does what is intended and limits unintended consequences.  Whatever you think of the ACA and its goals, it is bad legislation because the law itself is poorly crafted.

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