Patterico's Pontifications

7/22/2014

How a Republican President Could Kill ObamaCare Without Congress or the Supreme Court

Filed under: General — Patterico @ 9:07 pm

Hours after the D.C. Circuit handed down the Halbig decision, discussed this morning, the Fourth Circuit handed down a parallel ruling with the opposite result. Coincidence? Or did the three Democrat-nominated Fourth Circuit judges time the release of their opinion until just after the Halbig decision was issued, to blunt the public perception that the courts had ruled against Obama?

I’ll deal with the shortcomings of the Fourth Circuit’s so-called logic in more detail in coming days, but there’s one point I want to emphasize now: the decision emphasizes that, in theory, a Republican president could undo ObamaCare without the need for Congressional action, or even a favorable Supreme Court ruling.

How’s that? The answer is contained in the logic of today’s Fourth Circuit opinion.

The Fourth Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary” . . . and never really makes the argument that this is the logical interpretation. If a judicial opinion can be sheepish, then this opinion was bleating when its author wrote this passage:

Screen Shot 2014-07-22 at 7.07.24 PM

And if you want a truly risible passage, check out this bit from the concurrence:

Screen Shot 2014-07-22 at 7.00.43 PM

“Established by the state” means “established by the state” . . . except when it does not. Classic. The disregard for the text could be more blatant only if he said: “Established by the state” means “established by the state” . . . except when I say it doesn’t.

Ultimately, these judges are clearly too embarrassed to hold that the Obama administration position is so clearly right that it is the only logical interpretation. Instead, they say: well, the opponents of the law have a pretty good point, but we’re going to say the language is ambiguous, and call the arguments about its meaning a wash. And that means we defer to the interpretation of the relevant government agency . . . in this case, the IRS. The Fourth Circuit thereby relies on something called “Chevron deference,” which applies the rule (which strikes me as absurd) that courts must defer to reasonable agency interpretations of ambiguous statutes.

So let’s say that this goes up to the Supreme Court. Either they will rule the way the D.C. Circuit ruled in Halbig, or the way the Fourth Circuit ruled today. If they apply the same logic that the Fourth Circuit applied today, the presidency changing hands could change everything.

Here’s why: if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one. The U.S. Supreme Court’s Chevron case that created “Chevron deference” said:

The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.

In other words: agencies can change their minds, and we will continue to defer to them.

So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.”

Meaning that, even if Democrats retake the Senate in 2016 (assuming Republicans take it this year, as I expect they will), we would not need them to effect this rule change.

A President Cruz could write the Halbig interpretation into law, just like that. Boom. Done.

And if that means ObamaCare won’t work, well, hey. Live by Chevron deference, die by Chevron deference.

59 Responses to “How a Republican President Could Kill ObamaCare Without Congress or the Supreme Court”

  1. Ding.

    Patterico (9c670f)

  2. I don’t think you are wrong, Patterico, but I have seen so much direct and shocking hypocrisy (“it’s not fascism when I do it”) that I honestly think that the MSM and the low information voters and the alphabetists will have absolutely no trouble condemning a Republican/Independent President for doing things that were approved of when a Democrat President did them. Ditto SCOTUS decisions. DItto Congressional decisions.

    I wish it weren’t so. But these are Heinlein’s “Crazy Years,” and I think we are headed to the Balkanized future of “Friday.”

    Simon Jester (255218)

  3. That’s different!

    Ignoring the written law is only legal when liberals do it, or something.

    daleyrocks (bf33e9)

  4. But he would simply be restoring the written law. It would absolutely legitimate for him to do this.

    Patterico (9c670f)

  5. I think that President Cruz should suspend all of the obamacare law and also all laws that prohibit insurance companies from selling insurance across state lines. I mean, if obama can do what he wants then any president in the future can too. I know I would.

    Jim (145e10)

  6. “But he would simply be restoring the written law. It would absolutely legitimate for him to do this.”

    Patterico – Stop being so rational. He would be depriving millions of people of access to health care, just like the inhuman Hobby Lobby decision which the Democrats will crush. Women and minorities hardest hit!

    daleyrocks (bf33e9)

  7. “Established by the state” means “established by the state” . . . except when it does not.

    I am not a lawyer, but I felt embarrassed for the court as I read this. It’s so illogical. Just in general if this were so, then things of this nature would be in a state of flux as it went through continual interpretations and re-interpretations. Meaning should not be in a state of flux. At some point, words have to mean what they say, or then what?

    Dana (4dbf62)

  8. What amused me was the 4th Court essentially said that the court had to remedy the incorrect wording of the law rather than requiring the government to follow the law as it was written and passed by the Congress even though it admitted that the plaintiff had the better argument. So, maybe someone should have read the bill before the bill was passed.

    The D.C. court said: You know what this is what the law says, so you probably should fix it. Meanwhile, everything can go on as is until Congress does so.

    Well, actually that’s not amusing at all.

    By the way, did you know that Dems accept judicial rulings without question while the right goes crazy when a court rule against it. I only know what I read in the papers.

    Ag80 (eb6ffa)

  9. It’s hilarious that the liberals on the court do use the phrase “common sense” in regards to the plaintiff’s side, but, as is typical of the left, shrug it off and go with “feelings…nothing more than feelings….”

    But it is at least sort of an epiphany when left-leaning people at least admit there’s something sensible coming from the other side of the ideological divide, even though the phony-baloney do-gooder emotions of “progressives” — time and time again — get the better of them in the long run.

    Mark (d0e767)

  10. If we are guided by Obama precedent, couldn’t President Cruz simply extend Obamacare waivers to anyone and everyone who asks for them? Isn’t that just as logical as the IRS strategy? Also, couldn’t President Cruz’s HHS Secretary simply waive any and all regulations that his or her predecessors imposed? And couldn’t President Cruz order the IRS to avoid prosecuting anyone who runs afoul of the coverage mandate?

    The idea here would be to make the left rue the day it decided that the President can interpret and enforce the law any old damn way in which he chooses.

    JVW (feb406)

  11. The law means whatever the courts and government bureaucracies say that it means. Why can’t you Tea Party extremists understand that?

    Dirty Old Man (4ec992)

  12. Since the courts seem to be determined to give the executive branch carte blanche, maybe it’s time we work really hard to elect a conservative President. I’m really not interested in electing a Republican, by the way. Conservative is the operative word.

    Ag80 (eb6ffa)

  13. Not only 0bamacare. President Walker can also waive enforcement of all EPA and NLRB regulations

    Milhouse (469487)

  14. The slippery slope just got a lube job.

    Roy Lofquist (3fbd47)

  15. This is what the judge played by Shelly Berman called “jibber-jabber”, on Boston Legal.

    Kevin M (b357ee)

  16. The object of the exercise is not to make poor people pay back thousands in subsidies, which has a Marie Antoinette flavor to it, but to use the absolute need of correcting the Congress’ error to make drastic changes.

    Kevin M (b357ee)

  17. President Walker can also waive enforcement of all EPA and NLRB regulations

    Just think what the immigration folks could do with “new interpretations”. Or the IRS. How about “organizations that advocate increased government spending must show they have no contributions from people who might directly benefit.”

    Kevin M (b357ee)

  18. I’m looking for a word here. What is the opposite of “tautology”?

    Kevin M (b357ee)

  19. How are you going to get a republican elected president? Every presidential election cycle 5,000,000 million minority kids turn 18(voting age) and almost everyone of them hating republicans(possible exception rand paul) and 2,000,000 angry old white conservatives go to meet their maker and explain to him their evilness. Now hispanics hate you as much as african americans do and will never forgive what you are trying to do to the children! Karl rove and the toe sucker kept saying in 2012 we are going to get 61% of the white vote just like reagan did in 1984 are polls show it! The mormon did get 61% of white vote just like reagan ;but now that is not enough and the other 39% of white people hate you just as much as the minorities! Mrs.Clinton/warren 2016 then are first latina president!

    vota (8fe12b)

  20. Perhaps a change in medication is needed. Plus some capital letters. Weird.

    Simon Jester (255218)

  21. Perhaps a change in medication is needed. Plus some capital letters. Weird.

    There is no medication effective against the hate that vota exudes. It can’t help but comment how much it hates. Every sentence has the word “hate” or some derivative. The only surprise is the lack of it’s elimination rhetoric. I’m sure it was just an oversight.

    Hadoop (f7d5ba)

  22. A significant number of judges at all levels ignore the plain language of the law when it differs with their policy preferences. I’ve encountered some Southern California superior court judges and commissioners who regularly waive the statute of limitations in civil cases and impose burden of proof on defendants to disprove plaintiffs’ allegations which have no documentary backing. One ignores clear “shall not” statutory language when he believes that compliance with the law is economically inconvenient to plaintiffs.

    David (6f3506)

  23. President Cruz, President Walker- thanks to all who have faith.

    mg (31009b)

  24. Perry wakes up, hides his meds from the orderly, changes to a new IP, and spews his hatred.

    JD (61a2fb)

  25. This could be an opportunity for the Sup Court to get rid of the Chevron doctrine. The Obama adminsitration has shown that the civil service is corrupt, and can’t be trusted to interpret a law in accordance with its meaning.

    Bud Norton (29550d)

  26. It would be a great argument to make during the SCOTUS arguments. Was it Congressional intent that subsidies be awarded as determined by the IRS interpretation?

    DejectedHead (06f486)

  27. Vota (19), you have probably predicted correctly. But let’s not forget that Nixon tried to get the IRS to act on his behalf and didn’t get very far. Nullification!!

    bald01 (096663)

  28. All this conversation about the legality of an action like this…the while ignoring the fact that Cruz himself would be an illegal president.

    Evidently Reps figure you don’t even need to be born here to be President. And they wonder why they’re labeled the Stupid party.

    creeper (66694a)

  29. President Ted Cruz

    The mind boggles.

    carlitos (c24ed5)

  30. #28 Doesn’t citizenship get bestowed upon a child based on the citizenship of the parents?

    http://www.uscis.gov/us-citizenship

    ” had a parent or parents who were citizens at the time of your birth (if you were born abroad) and meet other requirements”

    So, Obama was always a citizen because his Mother was a citizen. It is also true for Ted Cruz.

    DejectedHead (a094a6)

  31. The mind boggles.

    Does the mind “boggle” at “President Obama”?

    Or only at people who would adhere to the Founders’ view of the role of government?

    You have completely succumbed to the lazy Big Media view of this country and government. It’s sad.

    Patterico (9c670f)

  32. Laws exist only to enforce or legitimate Democratic policy objectives.

    Amphipolis (e01538)

  33. after 8 years of food stamp i can definitely understand if some people lack an appetite for another divisive self-stylized and self-promoting harvard trash ideologue

    happyfeet (8ce051)

  34. Does the mind “boggle” at “President Obama”?

    Yes!!!!!

    With no offense intended towards your chosen profession, I think that replacing one Harvard Law Review editor with another Harvard Law Review editor is stupid and counterproductive. We need a CEO, not a lawyer. For all his faults, at least Bush Jr. was an effective executive. If I wanted to file amicus briefs to theoretical issues, I’d hire Cruz. If I want a CEO, not so much.

    carlitos (c24ed5)

  35. plus Ted is irreplaceable where he is

    happyfeet (8ce051)

  36. The worst oral argument I ever had was before a state appellate court. The argument revolved around the application of a statute. The court disagreed with my argument concerning the outcome of applying the statute as written, with one judge challenging me, stating: “That’s not what the statute says.” Even though the entire statute was set forth in my brief, I walked away from the podium, picked a copy of Revised Code, found the statute, and read it to him verbatim. His reply? “That can’t be what it means.”
    Ultimately we won, but I had several sleepless nights waiting for the decision.

    Walter Cronanty (b07329)

  37. That’s awesome, feets. I think that all Texas Republicans are irreplaceable where they are.

    carlitos (c24ed5)

  38. even Cornyn?

    happyfeet (8ce051)

  39. OK, Cornyn. But that’s it.

    carlitos (c24ed5)

  40. Cruz does not belong in the White House. He should spend another 10 years or so in the senate, and then be appointed to the Supreme Court.

    Milhouse (469487)

  41. Re: #18… ygolotuat is what yer looking for…

    Colonel Haiku (a6bc62)

  42. Wouldn’t it be much simpler to jut grant waivers to any business or individual that asks for one. Obama grants them at his whim, granting them to everyone would be no problem.

    Stosh (d5b87c)

  43. This could be an opportunity for the Sup Court to get rid of the Chevron doctrine. The Obama adminsitration has shown that the civil service is corrupt, and can’t be trusted to interpret a law in accordance with its meaning.

    Please no. Do you really want to cast this administration’s regulatory interpretations in stone?

    Kevin M (b357ee)

  44. So, Obama was always a citizen because his Mother was a citizen. It is also true for Ted Cruz.

    Yes, which is why the whole Kenya thing is so incredibly STUPID. Also, McCain was born in the Panama Canal Zone which was Panamanian territory operated by the US under treaty, but still Panama.

    Kevin M (b357ee)

  45. The is no voting our way out of this just as the Nasgels in black robes have proven beyond doubt there is no checks and balances against the tyranny and illegitimacy of the state and their abrogation of rule of law.
    I wish to express my view and personal experience this is as it should be, for people who are purposefully denied peaceful lawful means of redress from imposition of rule by elites are legitimate and lawful, naturally so, in resorting to just cause of resistance to this tyranny through violent means when all avenues of peaceful redress are exhausted.
    These quislings in black robes leave no civil recourse for the people to resort to. What do they expect as consequences of their ignorance and hubris? millions of law abiding civil people to submit and cowar before their omnipotent rule of men. Are they delusional they possess such legitimacy in our affairs? This is the stuff of psychopaths and dictators.
    Nothing good or reasoned will come of this.
    It is madness.
    The stuff of men who have decided they are gods.

    MtnTopPatriot (404a9b)

  46. Cruz does not belong in the White House. He should spend another 10 years or so in the senate

    Ted does seem to be in a hurry, and while he has great attraction, he also does not suffer fools gladly and most voters are fools. I don’t see the center choosing him over Hillary.*

    Problem is that the GOP has a number of candidates but all have seeming disqualifications. Forgetting their strengths for now:

    Rand? Young. Also in a hurry. Nebulous foreign policy with a whiff of isolationism and appeasement.

    Huckabee? Non-SoCons dislike him. Fiscal conservatives despise him.

    Santorum? Huckabee without the charm.

    Christie? Fat. Hates guns. Sleaze issues. SoCons don’t trust him. Left knife in Romney’s back.

    Next Bush? The last Bush wasn’t all that great. Squishy. His supporters would rather have Romney.

    Ryan? Too Establishment. Immigration. Could not win debate with Biden. Wonky. Young. SoCons wary.

    Perry? Three things: A whiff of dumb, reminds people of W, and I forget the third thing.

    Rubio? Immigration. Trusted Dems. Young, needs time in the Senate at least.

    Walker? Hummnph. Nothing horrible comes to mind offhand. Is he the guy?

    Romney? Say he doesn’t want it. Lost. Plastic. Hard conservatives don’t like him.


    * always remembering there are two years to go

    Kevin M (b357ee)

  47. Kevin, are you being misogynist or something?
    There are no womyn on your list: No Gov. Haley, No Gov. Martinez
    (I’ll skip the female GOP legislators, as I think State Houses are better incubators for Presidents)

    askeptic (efcf22)

  48. I was using the RCP poll list (plus Romney), and no women appear. Palin is probably a more viable candidate than those two anyway, and she’s not on the list either.

    Kevin M (b357ee)

  49. Palin has yet to discover a rehabilitation strategy, or at least to implement it if she has one.
    Pity!

    askeptic (efcf22)

  50. Haley is an amnesty whore, and she’s all up in Meghan’s coward daddy’s ass-crack

    it’s decidedly unpresidential to say the least

    happyfeet (8ce051)

  51. Ah, Kevin you forgot who you supported in the primary,

    narciso (ee1f88)

  52. Patterico, you had me at “President Cruz.”

    aunursa (932331)

  53. Ah, Kevin you forgot who you supported in the primary

    ?

    Kevin M (b357ee)

  54. you can’t just be supporting people in primaries all willy nilly Kevin

    I thought we’d talked about this

    happyfeet (8ce051)

  55. Too complicated. Simply issue an Executive Order granting universal waivers. Obama has already set the precendent for that a few times now.

    But you know that won’t happen. The GOP will instead attempt to “repair” Obamacare, because they don’t want to get nasty looks when they swing by Martha’s Vineyard for drinks with the Cool Kids.

    Fen (2f51e7)

  56. Those same judges will rule the opposite if President Cruz does it. You see, only GOP must obey the law, DEM could break the law and get away with it

    oic (c13288)

  57. “But he would simply be restoring the written law. It would absolutely legitimate for him to do this.”

    daleyrocks (bf33e9) — 7/22/2014 @ 9:30 pm

    Patterico – Stop being so rational. He would be depriving millions of people of access to health care..

    It’s not even that. Millions of people would immediately owe the IRS, at least in theory, tens of thousands of dollars – the amount of all the subsidies they got.

    Actually, there are plenty of people who will owe large sums anyway. People who got subsidies, and people, whom, in the end, did not qualify for Medicaid. Obama’s plans seem to be to automatically continue any subsidy for 2014 in 2015, regardless of new tax information, (2013 tax returns and withholding in 2014) postponing the problem I guess until 2016.

    There is going to have to be new legislation anyway, and long before 2017. The things is, I don’t any consensus, r even any real thinking, as to how they want to change it.

    Having tons of even theoretical debt hang over several million Americans is not a good idea. I can’t imagine how this will disincentive savings or working.

    Sammy Finkelman (51afd4)

  58. Newt, unless it was some kind of quixotic exercise.

    narciso (ee1f88)

  59. 16. Kevin M (b357ee) — 7/23/2014 @ 12:03 am

    The object of the exercise is not to make poor people pay back thousands in subsidies, which has a Marie Antoinette flavor to it, but to use the absolute need of correcting the Congress’ error to make drastic changes.

    Which is why it would not be reasonable for any president to do this. At least without simultaneously submitting legislation to Congress.

    There is no way this is going to be resolved by the way, without a one-time increase in the federal debt, or at least budget estimates. Even as things stand now, there’s more going to be paid out in subsidies and help for insurance companies than has been calculated. People ARE going to owe money that they could not reasonably be expected to pay back.

    Sammy Finkelman (51afd4)


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