Patterico's Pontifications


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.

White House Response to Halbig Decision: It’s The Intent That Matters

Filed under: General — Dana @ 2:48 pm

[guest post by Dana]

This morning, Patterico posted on the decision in the Halbig case and legislative “intent” versus the plainly clear language of a law:

The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop.

As expected, the White House begs to disagree:

JOSH EARNEST: What I do anticipate, the Department of Justice will do, is they will ask for a ruling from the full D.C. Circuit. as you know, this was a decision that was issued just by three members of the D.C. Circuit. Two of whom ruled against the federal government and one agreed with the government’s position. Now, it’s important for people also to understand that some of the district courts that have thrown out the case have been decided by judges who use some pretty strong rhetoric in doing so. There’s a judge in this case, at the district level, who said there’s no evidence in the statute itself orn (sic) the legislative history of any intent by Congress to support the claims that are made by the plaintiff. In another case that was making the same legal argument, a judge wrote that the theory propounded by the plaintiffs was, quote, not a viable theory. The last thing that is important, and this is — there’s a lot of high-minded case law that is applied here. There’s also an element of common sense that should be applied as well. You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace. I think that’s a pretty clear intent of the Congressional law. This will work the way through the legal process, and we’re confident in the legal case that the Department of Justice will be making.

FOLLOWUP QUESTION: Obviously, as these cases work through the legal system, there could end up being a practical impact on people who are receiving subsidizes. Can the health care law work effectively and continue to, as you say, be affordable for Americans without the subsidizes being available in all states?

EARNEST: We are confident in the legal position we have.

QUESTION: If that the legal position no longer becomes tenable, can the law work if these subsidies are not widely available?

EARNEST: That is a hypothetical that we will maybe entertain at some point.

Video at the link.


New York City Surrenders

Filed under: General — JVW @ 11:52 am

[guest post by JVW]

New Yorkers of the urban variety were greeted this morning by white flags flying from atop the Brooklyn Bridge. Fox News explains:

New York City police Tuesday were investigating how the two American flags that historically sit on top of the Brooklyn Bridge’s 273-foot towers were stolen and replaced with two white flags, which are known universally to symbolize surrender.

The white flags were removed by noon, but police said they are investigating the issue, which may indicate a serious security breach on one of the city’s most secured landmarks. . . .

A Twitter handle named @BicycleLobby claimed responsibility Tuesday, tweeting, “Earlier today we hoisted two white flags to signal our complete surrender of the Brooklyn Bridge bicycle path to pedestrians.” The Twitter handle later claimed to be a parody site and distanced itself from the tweet.
Either way, it appeared to take city leaders by surprise. . . .

Brooklyn Borough President Eric Adams told The New York Post that security for these high-risk targets are a top priority for law enforcement.
“Political and social expression, whatever its message may be, has a place in our society, but not at the expense of others’ security. I am confident in the NYPD’s ability to investigate this matter,” he told the paper.

Seeing as how the Brooklyn Bridge has been a past target of terrorism, I’m not sure we should feel too secure that perhaps a bunch of snotty bike messengers can so easily bypass security and access the bridge late at night under the cover of darkness.

But hey, just another day in the Era of Obama and DiBlasio.

[ADDENDUM]: I just noticed that commenter Mark clued us in to this on an earlier thread.


Democrats And Accusations Of ‘Acting White’

Filed under: General — Dana @ 10:02 am

[guest post by Dana]

President Obama met with young young black, Hispanic, Native American and Asian men yesterday. His message to them, in part, was one of being authentic:

President Barack Obama told a group of young black, Hispanic, Native American and Asian men on Monday that they need be proud of their backgrounds and draw strength from their cultures, but ignore people who accuse them of “acting white.”

Obama shared the advice to the young men as part of his “My Brother’s Keeper” program that is marshalling private and public resources to help more boys from minority groups succeed, a program that he views as an important part of his legacy.

Obama said students are sometimes discouraged from “reading too much” or “speaking so properly” because of “the notion of ‘acting white.’”

“The notion that there’s some authentic way of being black, that if you’re going to be black you have to act a certain way and wear a certain kind of clothes, that has to go,” Obama said.

“You don’t have to act a certain way to be authentic. You just have to be who you are – and to go back to the values that you care about.”

Ironically, I read this article on the heels of Ron Christie’s open letter to Eric Holder.

Christie informs readers that Holder was the commencement speaker at his graduation from George Washington University National Center.

He recalls Holder’s words to the graduates:

May 23, 1998, was one of the happiest days of my life. After four years of hard work, I joined 485 of my fellow law school students as we were set to receive our Juris Doctor degrees. You may not remember, but you were our commencement keynote speaker that day at the George Washington University National Center.

You rolled through the usual platitudes: “To those whom much is given, much is expected,” etc. But what struck me most were your personal stories. You told us about how, when you were a young prosecutor, you were running to a movie only to be stopped by police in Georgetown because of your skin color. You told us that you have carried around a clipping in your wallet from 1971—words spoken by Reverend Samuel Proctor that resonate with me to this very day.

“Blackness is another issue entirely apart from class in America,” Proctor said. “No matter how affluent, educated and mobile [a black person] becomes, his race defines him more than anything else.”

You went on to challenge us that we all need to strive to change that reality and bring about a day when Americans would be judged as individuals, not as members of a race. Yours was an inspirational challenge, and I’ve done my best since then to meet it.

Christie then goes on to express his dismay at the attorney general playing the race card:

I reflect back on your remarks that day, I am appalled that you have replaced that old clipping with a race card, and seek to exploit our country’s historic tensions for political ends.

“There’s a certain level of vehemence, it seems to me, that’s directed at me [and] directed at the president,” you said on ABC earlier this week. “You know, people talking about taking their country back…There’s a certain racial component to this for some people. I don’t think this is the thing that is a main driver, but for some there’s a racial animus.”

What you don’t understand, Mr. Holder, is that there are many of us who are trying to take our country back—back from a group of politicians who seem intent on our destruction as a pillar of strength and liberty in the world. Many of your fellow citizens are dismayed by your conduct, and our anger has nothing to do with the color of your skin.

You are the first attorney general in the history of the United States to be held in contempt of Congress. This had nothing to do with your skin color, and everything to do with your failure to explain how the United States government provided guns to Mexican drug cartels that were eventually used to kill Border Patrol agent Brian Terry in 2010.

His open letter further addresses the lack of responsibility taken by both Holder and the president regarding the IRS scandal. And in conclusion, he protests the accusations that racism is at the heart of any criticism toward the administration.

[C]ontrary to Holder’s claim that America is a “nation of cowards” when it comes to discussing race, it is in fact Holder and the president who are the cowards.

America’s first black president was expected to usher in a new era of racial equality. Instead, we have watched the bonds that hold Americans together become more frayed.

We are now more polarized and more divided along racial lines than the day you took office. By recklessly accusing your opponents of racism, you have turned back the clock on race relations in this country. We are all worse off as a result, and weaker as a country.

In light of the president’s meeting with minority young men yesterday and the admonishment to be “authentic” while ignoring those who would accuse them of “acting white”, he conveniently declines to state that it is his own party and his own supporters who play that vile game. And Democrats consider it a perfectly acceptable political weapon to be used at every turn possible.

Not ironically, a very quick perusal of comments at Ron Christie’s open letter reinforce the mentality:

As for Ronnie C: What can you say about a man who sells out his own people for a few pieces of silver?

African Americans who vote Republican are like chickens voting for Col. Sanders.

There’s a name for sell-outs like Ronny.

And so it goes.


Halbig: Textualism Wins, Obama Loses

Filed under: General — Patterico @ 7:20 am

The long-awaited Halbig decision is out, and the result is bad for Barack Obama and his oppressive ObamaCare law. The panel has voted 2-1 that Congress did not authorize subsidies for plans bought on exchanges established by the feds:

Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,”we reverse the district court and vacate the IRS’s regulation.

I told you on July 7: “I am now convinced that the judges on the panel will rule 2-1 against Obama.” Always trust content from Patterico.

Here’s what the controversy was about. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available.

Plain meaning. Textualism. Ain’t it great?

For now, temper your enthusiasm. The decision will certainly taken up by the entire D.C. Circuit Court of Appeals en banc, and with all the new Obama-appointed judges there, it doesn’t look good for today’s decision to be upheld. (But you never know.) Then the case will be appealed to the Supreme Court, and who knows what they’ll do?

But for now, it’s a good day. Conservatives actually win one for a change.

The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop. Conservatives, I expect, understand that now.

I am still making my way through the opinion. More updates as I read the decision.

UPDATE: Unsurprisingly, the opinion is written by Judge Griffith, with a dissent from Judge Edwards. Judge Griffith focuses primarily on the plain meaning of the language in the law, examining legislative history only as a backup, to show that the legislative history wouldn’t make any difference. The concurrence by Judge Randolph captures exactly what I have been saying here in recent weeks:

As Judge Griffith’s majority opinion—which I fully join—demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks.

The only way you could get to the interpretation/distortion that Obama advocates is by ignoring the “plain meaning” repeatedly cited by the majority, and by desperately clawing at some “intent” not apparent in the words of the statute.

This is how leftists try to undermine the rule of law. Today, it did not carry the day. We’ll see what happens going forward.

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