The full DC Circuit Court of Appeals pulls back from the brink of health-care loony-tune-itude

It was a good day for judicial sanity, not such a good day for the Great Right-Wing Noise Machine. Cartoon by Joel Pett (March 2013) -- click to enlarge.

"When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view."

-- legal eagle Ian Millhiser, today, in "BREAKING: Federal
Appeals Court Withdraws Decision Defunding Obamacare"

by Ken

In late July, I posed the question "Can the ideological perversions of two unapologetic far-right-wing activists on the District Circuit Court of Appeals lead to defunding Obamacare?" At that point, a three-judge panel of the DC Circuit Court had decided -- by the vote of the aforementioned pair of right-wing judicial psychopaths -- to ignore normal judicial standards and allow some admittedly fuzzy language in the Affordable Health Care Act, whose intent was almost impossible to mistake in the context of the law, to advance the agenda of a national conspiracy of Obama-loathers.

The Obama-loathers, of course, don't know or care anything about the U.S. health-care system. Presumably they're happy with the access to the system they have, or think they have. (A lot of them are in for rude surprises when they need access. And of course the large number of the supposed mortal foes of government-run health care already rely on Medicare, and are too dim or dishonest to grasp that they are already beneficiaries of, and in many cases only alive because of, "socialized medicine."). Their idea of our health-care "system" is that anybody who doesn't have access can just, as Alan Grayson pointed out so eloquently, drop dead.


THE LEGAL LOONS: CONFUSED OR JUST OPPORTUNISTIC?

No, the battle has never been about health care. These demonic sociopaths who have made Obamacare a defining national issue, all they care about is destroying America, if by "America" we mean a country of decency, reason, and hope. To this end they have rabble-roused an all too gullibly rousable public because, although these people know even less about Barack Obama than they do about health care, except maybe the color of this Obama guy's skin, they have chosen to make him the arch-demon of their deranged mental universe -- and drag the country with them. In the process, they have guaranteed that there is no possibliity of addressing actual human problems. Far-right-wing crazies will fight to the death to make sure that actual human problems are never addressed.

Naturally there are roving cohorts of demagogues in public life who are only too happy to pounce on this cauldron of psychosis for their own demonic purposes, purposes that begin with naked, raw, insatiable self-interest. In the course of their health-care-related crusade against honesty and decency, this gaggle of America-loathers succeeded in hornswoggling the above-referenced pair of ideologically deranged judicial perverts on the DC Circuit Court, traditionally ranked second in U.S. judicial importance only to the Supreme Court itself.

The substance of the issue latched onto by the Obama-loathers and their judicial-pervert supporters concerns use of the word "state," which in one instance in the ACA is used as a term for the government ("the State"), a sense that is utterly clear in context but when maliciously misread can be erroneously taken to refer to a state, as in one of the 50. Here's how ThinkProgress's legal eagle Ian Millhiser explained what he called at the time "a proofreading error" in the statute.

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.

NOT THE RESULT THE LEAGUE OF LOONS EXPECTED

In that post Ian also gave us a crash course in the judicial history of the two DC Circuit ideological perverts, Raymond Randolph, a GHW Bush appointee, and the reputationally "more moderate" Thomas Griffith, a GW Bush appointee.

Now, you may recall that at almost the same moment a panel of the Fourth Circuit Court of Appeals (Jesse Helms's old court, which under his watchful eye was an all but impregnable fortress of far-right-wing ideology) reached the opposite conclusion about the reading of the ambiguous "the State" -- that it's not judges' job to make it up according to the sawdust shaking around in their heads.

Interestingly, the far-right America-loathers devised a strategy that made the Fourth Circuit panel's incalculably saner and legally sounder ruling work in their favor. The strategy depended on their being now opposite rulings from two different circuits, a condition that generally argues for resolution by the Supreme Court. As Ian explains in his post today, the far-right-wing judicial perverts (my term, I should make clear, not his) obviously reasoned that they stand a much better chance now with the Supreme Court, with its generous supply of far-right-wing legal perverts, than with a hearing ("en banc") by the full DC Circuit Court.

So the League of Far-Right Legal Perverts devoted much of their appellate bravado to arguing that the full DC Circuit should be bypassed in favor of an immediate emergency hearing by the Supreme Court. Ian patiently explains how the argument was framed as well as why it was ridiculous -- and how it was nevertheless trumpeted by the Lying Liars of the Great Right-Wing Noise Machine, like the bloviators of the Wall Street Journal and National Review, who fill in with outright lies where obfuscatons and delusions alone won't do the job.

To be clear, what the full DC Circuit Court did today wasn't to overturn the panel's ruling, but simply to void it, undertaking to hear the case itself and issue its own ruling. It's still possible that the full court will reach the same conclusion as the pair of judicial psychopaths who prevailed in the panel ruling, but that doesn't seem likely. And today's action represented an immediate setback for the legal-pervert strategy of targeting the Supreme Court -- as of now, there are no longer opposite rulings in force from two different circuits.

Ian's explanation takes the matter a step further, and I found it fascinating. Essentially, today's action potentially changes the cast of characters in the eyes of the Supreme Court justices, recasting the two loons on the DC Circuit panel as possible "outliers who reached an idiosyncratic result in an easy case."

[T]he justices typically use the lower courts as a mechanism to screen the few cases raising issues that are difficult enough to warrant Supreme Court review from the vast bulk of cases that do not. This is one reason why the justices tend to hear cases where two courts of appeals disagree — because that disagreement is a sign that the case is sufficiently challenging that it requires a definitive ruling from the nation’s highest Court. When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view.

"Now that the DC Circuit has ignored [the right-wing legal loons'] attempts to scare them off with accusations of partisanship," Ian concludes, "this case no longer meets the usual criteria for Supreme Court review."

Not at all the result the League of Legal Loons was expecting today. (Thank goodness.)

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