Tag Archives: halbig

To Beat Obamacare, Opponents Resurrect an Old Birther Argument

Mother Jones

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Obamacare opponents outside the Supreme Court in March, 2014 Jay Mallin/ZUMA

The Supreme Court today is considering whether to hear a challenge to Obamacare that could deprive 8 million people of their newly acquired health insurance. If the court does decide to take the case, though, it will be buying into a legal argument that is frequently deployed by a different group of anti-Obama litigants—those who are trying to challenge the president’s citizenship.

The case, King v. Burwell, is one of a pair of lawsuits (the other is Halbig v. Burwell) seeking to strike a blow to the heart of the Affordable Care Act. As I explained last year:

The argument goes something like this: When Congress wrote the ACA, it said that premium subsidies would be available for certain qualifying citizens who were “enrolled through an Exchange established by the State.” (Emphasis added.) The law doesn’t say that those subsidies are available to people in the 34 states that declined to set up exchanges, where residents must utilize the now-infamously buggy Healthcare.gov, the federal exchange.

That’s where Obamacare opponents see a fatal flaw in the law. The plaintiffs in Halbig claim that they won’t be eligible for tax credits because their states didn’t start an exchange, so they won’t be able to afford insurance. As a result, they argue that they’ll be subject to the fine for not buying insurance, or to avoid the fine, they’ll have to pay a lot for insurance they don’t want. They want the court to block the IRS from implementing the law.

It’s a pretty audacious claim from a bunch of people who are, in fact, being helped quite a bit by Obamacare. One of the plaintiffs in Halbig is actually complaining about being forced to buy insurance that, with the subsidy, costs him $21 a year.

Putting those issues aside, though, the question for the Supreme Court today is whether to take up the King case. Obamacare opponents lost this case in July after it was argued before the 4th Circuit Court of Appeals in Richmond, Va. The court found that the issues raised by the plaintiffs were indeed serious, and that the statute is vague because of what is essentially a drafting error in the text. But Supreme Court precedent, the judges said, requires them to give deference to regulatory agencies’ interpretation of laws passed by Congress. Those agencies, namely the IRS, have taken the view that Congress intended for everyone to be able to access subsidies, regardless of which exchange they use to buy insurance. (Most of the law’s drafters have endorsed that argument in amicus briefs.)

The Halbig case, however, was heard by a three-judge panel from a different appellate court, in Washington, DC. That panel, which included two conservative GOP appointees, rejected the IRS’s interpretation of the law by and ruled, in a 2-1 vote, that Congress’ screw-up makes the federal health care subsidies unlawful. Generally speaking, when appellate courts disagree in similar cases like this, it’s up to the US Supreme Court to resolve the conflict, and that’s exactly what the King plaintiffs have asked the Supreme Court to do.

But not long after the decision in Halbig, the full DC Circuit set aside the panel decision and agreed to hear the case en banc—meaning that every judge on the circuit will will have a vote. The case is set to be argued in December, and many observers believe the full court, which now includes several Obama appointees, will overturn the lower court ruling and agree with the 4th Circuit that the subsidies are permissible. So technically, there is no circuit split at the moment for the high court to resolve—an argument the government has made in its briefs to the court opposing a high court review.

But the King plaintiffs are arguing that the Supreme Court should take up the case now anyway—because, well, they think it’s really, really important to stop health care reform from moving forward in case it eventually turns out to be illegal. (They’re also arguing that the original DC Circuit panel decision creates a circuit split, but plenty of lawyers disagree with them.)

In their petition to the Supreme Court, the King plaintiffs write, “Given the self-evident enormous importance of the IRS Rule to the ongoing implementation of the ACA, to the immediate economic decisions of millions of Americans and thousands of businesses, and to the currently flowing billions of dollars in expenditures that the D.C. Circuit ruled illegal, the need for this Court’s review is plainly and uniquely urgent.”

That dire language, though, bears some resemblance to the legal rhetoric frequently employed by some of the nation’s most dogged litigators: the birthers—those people who’ve spent the past six years filing lawsuits trying to prove that President Obama is not an American citizen. In years of legal filings, they’ve repeatedly begged the court to rule on Obama’s “legitimacy”—even though every lower court has rejected their claims—because, you know, if it turns out that he’s not really a citizen, that’s a problem the court should fix right away.

Here’s just one example, from the Supreme Court petition in Charles Kerchner v. Barack Hussein Obama II:

If the President and Commander in Chief is ineligible for those offices, both our civilian and military sector need to know that as soon as possible. The President is the Commander in Chief of our military forces. Whether he is legitimate is also vital in maintaining the proper chain of command in our military and in giving legality to all military orders that emanate from him.

Since the President signs all acts passed by Congress into law, it is vitally important that the President be legitimately in power so as to give those laws domestic and international legality.

Ian Millhiser, a constitutional policy analyst at the Center for American Progress, says this sort of argument is common among not just birthers, but also tax protesters and other fringe litigants looking to kill off government programs. The Halbig and King plaintiffs, he says, are essentially saying, “Because we have created this crisis whereby filing this lawsuit we have raised the possibility that all of this disruption has happened, it is therefore imperative that you, Supreme Court, take this case to end all this disruption we have created.”

The problem with this line of argument, of course, is that it could be applied to any lawsuit, no matter how frivolous. That’s why Millhiser doesn’t think the Supreme Court is likely to take up the case, at least not until the full DC Circuit delivers its own ruling. A case doesn’t become worthy of Supreme Court review, he says, simply because the plaintiffs have cooked up a legal attack strategy that, if successful, “could lead to catastrophic consequences.” He’ll likely find out if he’s right on Monday, when the court could announce whether it’s taking the case.

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To Beat Obamacare, Opponents Resurrect an Old Birther Argument

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Conservatives Want to Wipe Out Coal Rules…Over a Typo

Mother Jones

This story originally appeared on Grist and is republished here as part of the Climate Desk collaboration.

If you can’t beat ’em, point out their typos.

That seems to be the lesson of the D.C. Circuit Court’s recent decision in Halbig v. Sebelius, which could render millions of Americans ineligible for health insurance subsidies on the basis of some sloppy syntax in the Affordable Care Act. After surviving more than 50 repeal votes in the House, a Supreme Court challenge to its constitutionality, and a famously rocky online rollout, health-care reform may end up hobbled by a mere drafting error. And the anti-regulatory crowd wasted no time in launching its next AutoCorrect attack: A new suit asks the D.C. Circuit to nix the president’s biggest climate-change initiative—EPA’s “Clean Power Plan”—due to a 25-year-old mistake in the text of the Clean Air Act.

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Conservatives Want to Wipe Out Coal Rules…Over a Typo

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The (Possibly) Frightening Implications of the Halbig Case

Mother Jones

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In the Halbig case that struck down subsidies on federal Obamacare exchanges earlier today, one of the key issues was deference to agency interpretation of the law. Longstanding precedent holds that courts should generally defer to agency interpretations as long as they’re plausible. They don’t have to be perfect. They don’t even have to be the best possible interpretations. They merely have to make sense.

The DC circuit court decided that there really wasn’t any serious ambiguity in the law, and therefore no deference was due to the IRS’s interpretation that state and federal exchanges were meant to be treated the same. The dissent was scathing about this, since the record pretty clearly showed tons of ambiguity. So if and when this case makes it up to the Supreme Court, what’s going to happen? A lawyer buddy of mine is pessimistic:

Sadly, I think the Supreme Court will eagerly uphold the challenge because it gets to an issue that conservatives have generally despised: deference to administrative agencies’ interpretation of statutes.

It’s long been a fundamental principle in administrative law that an agency’s interpretation of a federal statute that they are charged with enforcing is entitled to judicial deference, unless such deference is unreasonable. Conservatives would prefer that courts not defer to the government because #biggovernment. Thus, they want to weaken the deference standard and Halbig gives them basically a two-fer. Or a three-fer since the agency interpreting the statute is the IRS: Take out Obamacare, knock back the deference standard, and punch the IRS. This invariably will help advance the conservatives’ legal goals because with a lower deference standard, their eccentric theories (such as on tax issues) have a better chance of surviving.

In normal times, the deference standard would likely be left intact because weakening it raises serious issues with government enforcement across all agencies, and courts are loath to send the country into a tailspin. But those days are apparently long past. Truly frightening times.

So what’s next? In breaking news, the Fourth Circuit court has just upheld the federal subsidies in Obamacare, ruling squarely on deference grounds—and disagreeing completely with the DC circuit opinion, which held that the legislative language in Obamacare was clear and plain. In fact, said the Fourth Circuit, the statute is ambiguous, and therefore the court owes deference to the IRS interpretation. This is good news for Obamacare, especially if today’s DC circuit decision by a three-judge panel is overturned by the full court, thus giving the government two appellate court wins. If that happens, it’s even possible that the Supreme Court would decline to hear an appeal and simply leave the lower court opinions in place.

But I’d say an eventual Supreme Court date still seems likely. There’s no telling if my friend’s read of the politico-legal climate among the Supreme Court’s conservative majority is correct, but I thought it was worth sharing.

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The (Possibly) Frightening Implications of the Halbig Case

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