Can the ideological perversions of two unapologetic far-right-wing activists on the District Circuit Court of Appeals lead to defunding Obamacare?

Plus a promise of thoughts-to-come about James Garner

Yes, justice is supposed to be blind, in the sense of being impervious to outside influences. Unfortunately, the two right-wing crusaders on the District Circuit Court of Appeals who channeled their hostility toward the ACA aren't blind, they're dumb and dishonest.

by Ken

You've no doubt already heard that, as the washingtonpost.com headline put it this afternoon, "Federal appeals courts issue contradictory rulings on health-law subsidies." Which was at least an improvement over the earlier headline, before the announcement of the second ruling: "Federal appeals court panel deals major blow to health law," which spawned pithy broadsides like this blurb on a washingtonpost.com post: "The decision to strike down tax subsidies in federal-exchange states deals a major blow to the Affordable Care Act."

Here's how the Post's Sandhya Somashekhar and Amy Goldstein began their afternoon report on the conflicting rulings, issued about two hours and 100 miles apart:

Two federal appellate courts handed down contradictory rulings Tuesday on the legality of a central part of the Affordable Care Act that provides insurance subsidies to millions of Americans in three dozen states.

The D.C. Circuit Court of Appeals ruled that the subsidies available under the 2010 health-care law may be provided only to residents of states that set up their own health insurance marketplaces. Less than two hours later, the Richmond-based 4th Circuit Court of Appeals upheld the subsidies, ruling in a separate case that the law’s language was ambiguous, giving the Obama administration the authority to allow the subsidies nationwide.

The divergent rulings increase the likelihood that the question will be decided by the Supreme Court. If the subsidies ultimately are struck down for states that did not set up their own marketplaces, it would be a crippling blow to the federal program, dramatically reducing the ability of low- and middle-income Americans to pay for health insurance, which is now mandatory for most people. . . .

Well, the Obama health-care law may in fact be in jeopardy, considering the species of quasi-judicial life forms a case may encounter as it moves its way up the federal court system to the very pinnacle, which is where, finally, disagreements between the U.S. circuit courts of appeals are resolved. We already know that there are five justices sitting on the Supreme Court who pay only nominal attention to the law and the Constitution, as they happen to align with those justices' deeply held biases and ideological perversions.

But for the record, we're not talking about two circuit court panels that looked deeply into the legal particulars of the case and in all honesty came up with divergent conclusions.

Now I'm prepared to believe that the Fourth Circuit panel did more or less what I just described: look deeply into the legal particulars of its case and come up with its best understanding of the law. But that sure as shootin' isn't what happened with the panel of the District Circuit.

There the two Republican judges, Raymond Randolph (appointed by Bush the Father) and Thomas Griffith (appointed by Bush the Son), who formed the 2-1 majority by which Obamacare would be defunded in states where the health-care marketplaces are federal rather than state entities, simply hung their rigid far-right-wing dogma on what ThinkProgress's Ian Milhiser described in his earlier post today as "a proofreading error" in the ACA, to produce a result that makes sense only when we know that Judge Randolph has already been agitating against the law and during oral arguments actively advocated for the "fuck Obamacare" side.

Here's Ian M on the wacko scumbag who wrote today's jackass, almost totally anti-factual District Circuit ruling:

Judge Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side. Randolph complained, just a few weeks before President Obama would announce that the Affordable Care Act had overshot its enrollment goal, that the launch of the Affordable Care Act was “an unmitigated disaster” and that its costs “have gone sky-high.” At one point, Randolph also cut off Judge Harry Edwards, the sole Democratic appointee on the panel, to cite an editorial published by the conservative Investor’s Business Daily to prove the argument that Obamacare should be defunded.

The Investor’s Business Daily is not known as a particularly reliable source on health policy. In 2009, for example, it published an editorial arguing that Stephen Hawking, the British physicist who is an Englishman from the United Kingdom, “wouldn’t have a chance in the U.K., where the National Health Service would say the life of this brilliant man, because of his physical handicaps, is essentially worthless.”

Ian isn't much kinder to Judge Griffith, who "has a reputation has a more moderate judge."

In 2012, Griffith’s colleague, Judge Janice Rogers Brown, published a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. “America’s cowboy capitalism,” Brown claimed, “was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.” Later in her opinion, Brown suggested that the Court went off the rails when it “decided economic liberty was not a fundamental constitutional right.” In the early Twentieth Century, conservative justices relied on ideas of “economic liberty” that were discarded in the 1930s in order to strike down laws protecting workers’ right to organize, laws ensuring a minimum wage and laws prohibiting employers from overworking their employees.

Griffith did not join Brown’s opinion, but his explanation for why he did not do so is instructive — “[a]lthough by no means unsympathetic to [Brown's] criticism nor critical of [her] choice to express [her] perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” So Griffith is “sympathetic” to Brown’s argument that much of the Twentieth Century is unconstitutional, but he did not want to join her opinion because the arguments she made were not raised by the parties in that case. Halbig, by contrast, presented Griffith with a much more direct attack on supposedly “burdensome regulation” brought by the forces of “cowboy capitalism.”

SO WHAT'S IT ALL ABOUT?

What is this "proofreading error," as Ian M describes it? Why don't we let him explain?

The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.

Ian acknowledges, "It is indeed true that a single phrase of the Affordable Care Act, if read in isolation, suggests that Congress intended only state-run exchanges -- as opposed to federal exchanges -- to offer subsidies, but this provision is contradicted by numerous other provisions of the law." And he proceeds to set some of them out. The fact is, the Scumbag Judges appear to have pounced on the only mention in the entire law where it's possible to read in such a distinction between state exchanges and the backup federal ones.

And the bald assertion that "a federal Exchange is not an 'Exchange established by the State,' " is on the simple factual level 100 percent incorrect. As Ian points out, Congress always gets to define its own terms in a piece of legislation, and the Twin Scumbags hadn't been so ignorant, lazy, and/or dishonest, they could have availed themselves of the opportunity to inform themselves of what the ACA actually says on the subject. Another provision, Ian points out, indicateds that "any 'exchange' shall be an 'entity that is established by a State'"— language which indicates that federally run exchanges will be deemed to be “established by a state.”

There's a good deal else in the law that makes nonsense of the judicial excrement that flowed from Judge Raymond's stinkybutt into his ruling, starting with the ACA section title "Affordable Coverage Choices for All Americans." "If Randolph and Griffith are correct," says Ian, "Congress would have named that subtitle 'Affordable Coverage Choices for All Americans Except For Those Americans Who Live In States With Federally-Run Exchanges.' " Put it all together, and it's hard to see how any reasonable person could have any question about the intent of Congress here.

But Judge Stinkybutt isn't any reasonable person. It seems clear that he didn't give a good goddamn what the law says, or what the law is. He was after all, actively engaged as a crusading activist, for which the courts above him should not only strike him and his pathetic weasel accomplice Judge Griffith down but recommend that they do the right thing and, in view of their demonstrated inability to serve honestly as judges, step down from the court.

By contrast, Ian writes in his later post taking the ruling delivered two hours later into account:

Unlike the DC Circuit’s opinion, the Fourth Circuit is a model of judicial restraint and humility. Although all three judges on the Fourth Circuit panel were nominated by Democratic presidents (Judge Roger Gregory, who authored the opinion, has the unusual distinction of being nominated by both President Clinton and the second President Bush), the majority opinion does not claim, as the DC Circuit did, that this case is a slam-dunk for their political party’s preferred outcome. Indeed, it claims that different provisions of the law seem to conflict with one another, and that the meaning of the statute is ambiguous. Though Judge Gregory’s opinion concludes that the Obama Administration “make[s] the better of the two cases” regarding how the law should be read, he also writes that “we are not convinced that either of the purported statutory conflicts render Congress’s intent clear.”

Under the longstanding Chevron Doctrine, however, it is not the job of judges who are confronted with an ambiguous statute to read their preferred outcome into the law. Rather, the Supreme Court has ordered federal judges to defer to an agency’s reading of a law — in this case, the Internal Revenue Service (IRS) — so long as “the agency’s answer is based on a permissible construction of the statute.” “We ‘will not usurp an agency’s interpretive authority by supplanting its construction with our own,” Gregory writes, “so long as the interpretation is not ‘arbitrary, capricious, or manifestly contrary to the statute.’”

"In the end," says Ian, "the battle between the Fourth Circuit and the DC Circuit is a battle over who gets to make law."

Normally, that power rests with Congress, but when a law is ambiguous, the Supreme Court has long recognized that courts should defer to the Executive Branch. This rule achieves two ends. It ensures that agencies with expertise on a particular area of law get to interpret that law, rather than leaving matters to inexpert judges. And it also ensures that the people who make important policy decisions are ultimately accountable to the American people.

If the electorate does not approve of the Obama Administration’s reading of this law, then the Fourth Circuit’s opinion permits them to vote for a different president who will read the law in a different way. The DC Circuit, however, would steal this decision away from the American people, and place it in the hands of a few unelected officials in black robes.

ABOUT JAMES GARNER

I should have gotten myself into gear faster, I know, since the death of James Garner on Saturday. But it has been an even more than usually hectic time for me, and I need a beat or two to collect some thoughts about the man behind one of the greatest characters, if not the greatest, in screen history. I'm shooting for tomorrow.

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