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.
Congressional Democrats and the Obama administration bet that they could force the states to do their will. When they lost their bet, the administration ignored the Constitution and ordered the spending of monies that Congress never authorized.This was lawless behavior, and reckless as well. It promised to individuals acting in reliance on government regulations money that was subject to being clawed back if a court applied the statute as written.The alternative was, to be sure, politically unpalatable. The administration could have gone back to Congress and asked it to authorize subsidies in states with federal exchanges. House Republicans, now in the majority, would have demanded other changes in the law.So today the strongest argument for upholding the administration’s reckless regulation is that people might be hurt if the law is enforced as written. White House Press Secretary Josh Earnest says Congress meant to give money to lots of people — so who cares what the law actually says?
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit—a tribunal second only to the Supreme Court—ruled on Tuesday that the Obama administration broke the law. The panel found that President Obama spent billions of taxpayer dollars he had no authority to spend, and subjected millions of employers and individuals to taxes he had no authority to impose.
The D.C. court made the right call, based on a strict reading of the law. But the probability that this ruling leads to the collapse of Obamacare is somewhere between zero and zero. That is to say, zero.