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WASHINGTON — 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 11-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 36 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 5 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 (BEG ITAL)post hoc(END ITAL) 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 30-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’ 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.


E.J. Dionne’s email address is ejdionne@washpost.com. Twitter: @EJDionne.(c) 2014, Washington Post Writers Group

E.J. Dionne, Jr., WASHINGTON POST COLUMNIST
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Copyright 2014 The Moderate Voice
  • The_Ohioan

    So will the Supremes pass the ball and not hear the case or will they take this opportunity to deliver the fatal blow. Inquiring minds want to know.

  • dduck

    Hall pass by Roberts.

  • sheknows

    That cartoon pretty much says it all.

    “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”

    Jon Stewart had a great answer. If you are going to take a literal term out of context than every time they come to a stop sign in the road, they must completely stop and not move. …ever. That’s what the sign says, and that’s the law.

  • dduck

    To say “Edwards writes in his dissent, the “incentive story is a fiction,” is debatable to some extent.
    ” A former adviser to the Obama administration on health policy made public statements in 2012 that undercut arguments it is now making in court about the government’s authority to subsidize insurance premiums. The adviser, Jonathan Gruber, a professor of economics at the Massachusetts Institute of Technology, said at a conference in 2012 that consumers could not obtain insurance subsidies under the health care law if they lived in states that refused to establish their own insurance exchanges. ”

    But wait, he later backed away, Hmmm.
    “I made a mistake in some 2012 speeches in describing the tax credits,” Mr. Gruber said in an email on Friday. “It is clear from all my writings and modeling that I did over this same time period that tax credits are assumed to be available in all states. This is the only sensible reading of the Affordable Care Act and is corroborated by every single person who helped craft the law.” Loyal Democrat?

    http://www.nytimes.com/2014/07/26/us/politics/ex-obama-aides-statements-in-2012-clash-with-health-act-stance.html?_r=0

  • “said at a conference in 2012 that consumers could not obtain insurance subsidies under the health care”

    He didn’t actually say that so directly. There was ambiguity in his statement, sort of assuming that the only option was subsidies from a state exchange and forgetting the possibility of a federal exchange, but his statement was quite far from an absolute statement that policies must be purchased on the state exchange.

  • dduck

    “His comments, captured on videotape……..”
    Link anyone.

  • Here’s the text:

    “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.”

    http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube

    He is speaking about the importance of having exchanges and clearly made a mistake in ignoring the fact that if a state fails to form an exchange there is the option of a federal exchange. He is certaily not talking about the need for a state exchange as opposed to a federal exchange.

    Considering that his other statements indicate that there is no difference in terms of subsidies between a state or federal exchange, and that everyone else discussing this also considered them the same, those trying to use this as evidence have an extremely weak case.

    If there really was a need for specifically a state exchange, then what about the District of Columbia, or those regions which are technically Commonwealths and not states? By their argument would they also be denied subsidies as they are not technically state exchanges?

  • dduck

    Ahem, yeah right.

  • sheknows

    ‘Considering that his other statements indicate that there is no difference in terms of subsidies between a state or federal exchange, and that everyone else discussing this also considered them the same, those trying to use this as evidence have an extremely weak case. ‘

    This is true, and as was pointed out, has to do with the context
    At any rate, the crime about to be committed by the Republicans in trying to harm over 5 million people, is only akin to their trying to harm the other 22 million they will not approve expansion for in their states.

    Harm is harm and deliberately jaded and cruel is just that. It doesn’t even matter that many of those they are harming are good, hard working . low wage earning Republicans .

    None of this is about anything other than defeating a black man who dared to run for president and pass a healthcare bill that helps the poor.

    If they cannot get him on that…they will try impeachment for going around congress to help other people the Republicans refused to help.
    The vitriol and hatred and pettiness never stops.

    Once we turned to the SCOTUS for rational decisions that benefitted our society, and clearly, getting people insured benefits our society.
    Now we have to contend with a majority SCOTUS that doesn’t
    value that anymore, but partisan and political interests.

  • dduck

    Yes, well, IMHO, Roberts did Obama a favor the last go round.
    Better thinking out and drafting of laws would help, but of course the side deals and “accommodations” make it harder.
    Making Frankenstein as handsome as Clooney and as fair and wise as Solomon will take awhile.

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