Update: (by Karoli) The 4th Circuit ruled unanimously today in the opposite direction, saying that Congressional intent was clear with regard to federal exchanges.
While these cases are under review, nothing will change. The fact is, this issue could have been resolved with a simple technical correction to strengthen the language around federal exchanges in states without their own, but our crazy Congress will not consent to something that they do routinely when the inmates are not in charge of the asylum.
The 4th Circuit decision was plain and clear: Congress intended for those covered under federal exchanges to receive tax subsidies. Period.
Now, don't panic. This was expected, and it's very unlikely to be upheld on appeal. Too much precedent on cases involving proofreading error, and we have extensive documentation as to what the authors of the Affordable Care Act actually intended.
Near the end of 2013, Sen. Ted Cruz (R-TX) led a final crusade to defund the Affordable Care Act, eventually announcing on the Senate floor that “I intend to speak in opposition to Obamacare, I intend to speak in support of defunding Obamacare, until I am no longer able to stand.” Cruz did succeed in goading his fellow Republicans into shutting down the federal government, but his effort was ultimately doomed. The American people’s elected representatives voted not to defund Obamacare, and the shutdown ended.On Tuesday, two Republican judges voted to rewrite this history.
Under Halbig v. Burwell, a decision handed down by Judge Raymond Randolph, a Bush I appointee, and Judge Thomas Griffith, a Bush II appointee, millions of Americans will lose the federal health insurance subsidies provided to them under the Affordable Care Act — or, at least, they will lose these subsidies if Randolph and Griffith’s decision is ultimately upheld on appeal.
Ted Cruz is undoubtedly smiling today. Two unelected Republicans just voted to erase his most embarrassing and most public defeat, and they voted to take away millions of Americans health care in the process.
Really, don't worry. The odds of this happening are quite slim:
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We live in interesting times. And we live in times where judges and justices can not longer be expected to rely on established law, especially when they are presented to an opportunity toundermine Obamacare. Nevertheless, there are several reasons to be optimistic that Randolph and Griffith attempt to defund Obamacare will not survive contact with a higher authority.
For starters, under the Supreme Court’s Chevron Doctrine, courts typically defer to a federal agency’s reading of a law so long as “the agency’s answer is based on a permissible construction of the statute.” Randolph and Griffith get around this doctrine by claiming that the law “the ACA unambiguously restricts the section 36B subsidy to insurance” purchased on state-run exchanges.
If you truly believe that the only possible interpretation of the Affordable Care Act’s language is the one adopted by Randolph and Griffith on Tuesday, then you may want to go back to the top of this article and start reading it all over again. In any event, two federal judges previously concluded that Obamacare is unambiguous in the other direction — that is, it unambiguously offers subsidies to people who purchase insurance through federal exchanges. That alone demonstrates that, even if the law isn’t completely clear, its meaning is at least uncertain enough that the courts should defer to the agency’s reading underChevron.
More importantly, Randolph and Griffith’s own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.
Should the full DC Circuit intervene, of course, their decision can ultimately be appealed to the GOP-controlled Supreme Court. But we’ve already seen this story play out once before. The last time conservative lawyers brought a case to the Supreme Court seeking to gut Obamacare, Chief Justice John Roberts voted to uphold the bulk of the law.