The Obama administration once again trampled the law in order to protect its signature healthcare legislation known as ObamaCare. Last week the D. C. Circuit Court moved to vacate its own decision in Halbig v. Burwell by accepting a request for an en banc review.
The issue is the eligibility for subsidies for those purchasing health insurance under ObamaCare on the federally run exchange. The Affordable Care Act clearly stipulates that subsidies are only available through exchanges “established by the State.” When thirty-six states unexpectedly chose not to establish state exchanges, the Obama administration was left with a decision to make. Abide by the law and give up subsidies to about two-thirds of the population or ignore the law and direct the IRS to grant subsidies to everyone. They chose the latter.
The D. C. Circuit Court struck down this interpretation of the law in its decision of Halbig v. Burwell when two of three justices on the panel found the law is clear and the Obama administration violated the law. But now the White House has called for an en banc review, which means not just three justices but the whole court of thirteen will hear the case.
Senator Reid’s Agenda
This plays into the hand of Senator Harry Reid who stacked the D. C. Circuit Court for just such a situation when he called for the “nuclear option” by striking down the Senate filibuster rule that had existed since 1837. Though both parties had decried this rule when their majority position was stymied by the minority party, both recognized the importance of it in assuring the rights of the minority. Reid, himself, had argued vociferously when his party was in the minority that the rule was important to maintain.
But on November 21, 2013, Reid destroyed nearly 200 years of Senate precedent and ended the filibuster rule for appointment of judges at all levels except the Supreme Court. His reason for doing it was precisely to set up the situation we find now in the D. C. Circuit Court. By railroading through 3 liberal judges on a party-line vote that could not be achieved with the filibuster rule, he has packed the Court with a liberal majority of eight to five.
The en banc review is actually scheduled to take place the week before Christmas, which further satisfies the Obama administration desire to delay the impact. The IRS is currently granting subsidies to millions of Americans unlawfully and will continue to do so as the slow judicial process plays out. The White House is hoping the longer they delay the more likely the Court will find in their favor.
King v. Burwell
There is another judicial review that is playing out on a parallel course on the same issue. King v. Burwell was decided in the 4th Circuit Court in Virginia and the government won this decision. The Court reluctantly found in favor of the government when they interpreted the “intention of Congress” as the White House argued.
But ironically, this victory by the White House gives momentum to an appeal to the Supreme Court for the ultimate arbitration of the issue. The Wall Street Journal reports Michael Carvin, the lead attorney in both King and Halbig, has already filed a cert petition asking the Supreme Court to hear King. If four justices agree, the Supreme Court will hear the issue this term and the en bank review of Halbig will be rendered irrelevant.
“There is no value to further percolation,” says Joshua Hawley and several other former clerks for Chief Justice John Roberts in a well-argued amicus brief for the King cert petition. The Journal editorial board said, “The legal questions are uncomplicated and squarely in front of the Supreme Court. But the legal uncertainty is bleeding into health markets already, and if the illegal subsidies are ultimately withdrawn, the disruptions to individuals and businesses will be that much worse after a legal-political lag of several years. The country would be better off with a quick, decisive resolution. And however the Justices rule, they would send a message to Mr. Reid to stay out of their chambers.”
President Obama, and his enablers like Mr. Reid, have repeatedly shown contempt for the Judiciary and the Constitution with unilateral moves such as this one to circumvent the law as it suits their political agenda. It is hoped that the Supreme Court will again put a stop to such lawlessness and uphold the law as it was written. The Constitution ultimately provides for the means to change laws that need changing – by the votes of the people.