A federal appeals court has summarily tossed a lawsuit challenging the Obama administration’s delay of Obamacare’s employer mandate — a case that is similar to the one that House Republicans plan to file against the president.This suit was filed by the Association of American Physicians and Surgeons, which argued that the delay could hurt doctors financially. But the 7th Circuit Court of Appeals in Chicago on Friday said the plaintiffs don’t have a right to sue.
On December 24, 2009, the wretched PPACA child was spawned by the U.S. Senate in the wee morning hours, with not a vote to spare. In January 2010, Senator Brown was elected to Ted Kennedy’s former seat, depriving the Democrats of a filibuster-proof majority. Whereupon a bunch of experts, including the aforementioned gentlemen, sent a letter to the House leadership, urging them to pass the Senate bill, warts and all. Best we can get, they said, and too important to be renegotiated. Details can be fixed through reconciliation which did take place but conspicuously did not address the Halbig issue. Pass it.
The letter merits re-reading for its unctuous tone; for the “experts’” preposterous proposition that the ACA would or even sought to create “functioning insurance markets”; and for the light it sheds on this latest round of unsolicited expert advice. In this country, we usually follow the laws that Congress did enact, not some blowhard’s latter-day reconstruction. In 2010, they begged for an imperfect bargain; now, they want it back.
The debate continues over religious protections and whether corporations can be considered people, but it misses a more immediate issue from the court’s opinion: What exactly is a “closely held corporation”?Regulators are grappling with this issue as they consider which corporations get to opt out of the law’s requirement on contraceptive coverage. And more than contraception is at stake; deciding which companies can assert religious principles determines who among millions will receive other services like abortion.
Way back in 2011, Jonathan Adler and I began researching whether the Patient Protection and Affordable Care Act (“ObamaCare”) authorizes the IRS to issue health-insurance subsidies solely “through an Exchange established by the State” (as the statute says), or also through fallback Exchanges established by the federal government (as the IRS is now doing). Our efforts have culminated in this law-journal article; lots of other publications; four lawsuits challenging the IRS; a victory before a three-judge panel of the D.C. Circuit in Halbig v. Burwell; and a loss before a three-judge panel of the Fourth Circuit in King v. Burwell. (The Obama administration has asked the full D.C. Circuit to overturn the Halbig panel ruling, while the Kingplaintiffs have appealed their loss to the Supreme Court.) Adler and I have been at this for a while, so it is interesting to watch others start to work through the same questions and evidence we did years ago. The Washington Post’s Greg Sargent is an interestingexample. He sets out to prove that our interpretation of the statute is faulty, but inadvertently makes our case for us.
Jonathan Adler, an architect of the legal challenge to Obamacare subsidies, echoed White’s argument at his Washington Post legal blog, arguing that prior rationales for en banc grants don’t apply to Halbig. He told TPM rehearing the subsidies case would be “at odds” with D.C. Circuit norms.”What’s hard to find are cases in which en banc review in the D.C. Circuit was granted where there wasn’t an underlying legal question that needed to be clarified or resolved and/or … where it was just the majority disagreeing with the panel,” Adler said by phone. “Those cases are very, very rare and that’s not the way the D.C. Circuit has traditionally used en banc review. They have the power to do so here. They might. They’re allowed to. It just would appears to be at odds with their traditional practice.”
Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration’s supporters seem to believe that Halbig has “exceptional importance” because the Affordable Care Act is exceptionally important to them and the panel’s decision was, in their eyes, wrong.
But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards —the very D.C. Circuit judge who dissented from the panel decision in Halbig.”Obviously, no judge agrees with all of the decisions handed down in the circuit,” Mr. Edwards wrote in a 1987 case involving the Department of Health and Human Services.
But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making” [his italics]. Rather, en banc review must be reserved for “the rarest of circumstances,” Mr. Edwards wrote, cases with “real significance to the legal process.”
‘So sue me” is President Obama’s message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president’s failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no “stunt,” as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution’s separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.