Affordable Care Act

  • September 11, 2014

    by Caroline Cox

    The Supreme Court has scheduled for consideration same-sex marriage cases from five states at its September 29 private conference, reports Richard Wolf for USA Today.

    In The New York Times, Henry J. Aaron, David M. Cutler, and Peter R. Orszag argue against the constant the legal challenges to the Affordable Care Act.

    Arit John writes for The Wire that lawmakers in Missouri have increased the wait period for abortions in the state to three days.

    Joanna Rothkopf reports in Salon on the continuing protests in Ferguson over the failure to appoint a special prosecutor to review the Michael Brown shooting.

    In the New Republic, Justin Driver reviews a new biography on Justice Antonin Scalia.

  • September 5, 2014
    Guest Post

    by Brianne Gorod, Appellate Counsel for the Constitutional Accountability Center.

    This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Ever since three-judge panels on the Fourth Circuit and the D.C. Circuit issued conflicting rulings in July on the availability of tax credits under the Affordable Care Act (ACA), the opponents of the law have been trying to rush their case to the Supreme Court.  That’s where they apparently think they have their best shot at succeeding in what D.C. Circuit Judge Harry Edwards called their “not-so-veiled attempt to gut” the law.  But thanks to an Order just issued by the full D.C. Circuit, their chances of getting the case in front of the Supremes just got a lot lower.

    The two cases involved are just the latest salvo in the ACA opponents’ continuing efforts to kill the ACA by any means possible.  In these challenges, the opponents of the law argue that the ACA, which was enacted to make health insurance affordable for all Americans, doesn’t permit people to receive the tax credits that actually make it affordable if they purchase their insurance in one of the 36 states that have opted to let the federal government run their Exchange.  Thus, they argue, an IRS rule confirming that tax credits are available to all qualifying Americans, regardless of where they live, is invalid under the statute. 

    It’s an argument that shouldn’t hold water in any court.  The opponents of the law rest their argument on one four word phrase—“established by the State”—but ignore the text of the rest of the 900-some page statute that makes it clear that federally-facilitated Exchanges are functionally the same as state-established Exchanges.  Even Justice Scalia should recognize that’s no way to interpret a statute.  As he explained just last year, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."  Here, reading the words of the statute in context makes clear that tax credits should be available to all qualifying Americans.  Fourth Circuit Judge Andre Davis called the argument made by the law’s opponents “tortured” and “nonsensical.” 

  • September 5, 2014

    by Caroline Cox

    Simon Maloy argues in Salon that the decision by the U.S. Court of Appeals for the D.C.  to hold an en banc rehearing of Halbig v. Burwell represents a major victory for Obamacare supporters.  Richard Wolf of USA Today asserts that the rehearing illustrates the impact of the president’s appointed judges.  Read more about the Halbig case on the ACSBlog.

    In The New York Times, David Firestone writes on the preliminary injunction entered by Judge Peter C. Economus of the U.S. District Court for the Northern District of Ohio which blocks efforts to limit early voting in Ohio.

    Dominic Rushe, Lauren Gambino, Rory Carroll, and Mark Guarino report for The Guardian on the arrests of hundreds of fast-food workers protesting against low wages in cities throughout the country.

    Matt Apuzzo writes for The New York Times that Stuart F. Delery will replace Tony West in the Justice Department.  Delery will be the highest ranking openly gay man to serve in the DOJ. 

    In The Washington Post, Sari Horwitz, Carol D. Leonnig, and Kimberly Kindy report that the Justice Department will launch a civil rights investigation into the Ferguson, Mo., Police Department.  

  • August 8, 2014
    Guest Post

    by Nicholas Bagley. Bagley is an Assistant Professor at University of Michigan Law School. 

    *This post originally appeared on The Incidental Economist. 

    Now that the government has asked the full D.C. Circuit to rehear Halbigsome commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

    This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

    To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.

  • August 7, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges. Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act. (I filed amicus briefs on behalf of Families USA in both cases.) 

    In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case. The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents. A decision by the en banc Court to reconsider will automatically vacate the panel opinion. If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.

    In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review. The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case. For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel. A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3. If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here. Human fallibility being what it is, judges sometimes get an answer wildly wrong. As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2.