Federal Appeals Court Withdraws Decision Defunding Obamacare
Posted by Michelle Moquin on September 25th, 2014
Good morning!
From Think Progress:
BREAKING: Federal Appeals Court Withdraws Decision Defunding Obamacare
In July, two Republican judges on the United States Court of Appeals for the District of Columbia Circuit handed down a decision defunding much of the Affordable Care Act (ACA). This effort to implement Sen. Ted Cruz’s (R-TX) top policy priority from the bench was withdrawn on Thursday by the DC Circuit, and the case will be reheard by the full court — a panel that will most likely include 13 judges. In practical terms, this means that July’s judgment cutting off subsidies to consumers who buy insurance plans in federally-operated health exchanges is no more. It has ceased to be. It is, in fact, an ex-judgment.
The reason why this matters is because the plaintiffs in this lawsuit, known as Halbig v. Burwell, are hustling to try to convince the GOP-dominated Supreme Court to hear this case, where they no doubt believe that they have a greater chance of succeeding than in the DC Circuit, as a majority of the active judges in the DC Circuit are Democrats. The Supreme Court takes only a tiny fraction of the cases brought to their attention by parties who lost in a lower court — a study of the Court’s 2005 term, for example, found that the justices granted a full argument to only 78 of the 8,517 petitions seeking the high Court’s review that term. The justices, however, are particularly likely to hear cases where two federal appeals courts disagree about the same question of law.
Two hours after the divided DC Circuit panel released its opinion attempted to defund Obamacare, a unanimous panel of the Fourth Circuit upheld the health subsidies that are at issue in Halbig. Thus, so long as both decisions remained in effect, Supreme Court review was very likely. Now that the full DC Circuit has vacated the two Republican judges’ July judgement, Supreme Court review is much less likely.
Although it is possible that the full DC Circuit could agree with the two judges who voted to cut off health subsidies to millions of Americans, this outcome is unlikely. The plaintiffs’ arguments in this case are weakand are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.
The litigants seeking to undermine Obamacare through this lawsuit — Oklahoma Attorney General Scott Pruitt (R), who filed a brief supporting the plaintiffs in this case, admitted in a Wall Street Journal op-ed that the purpose of this lawsuit is to cause “the structure of the ACA” to “crumble” — waged a two front effort trying to convince the full DC Circuit not to vacate their two GOP colleagues’ decision. The first half of this effort was a brief the plaintiffs filed with in the DC Circuit urging the full court to give the case a miss — although the argument raised in this brief is rather unusual. In essence, it broke down to three claims:
- This case is really important. And potentially very disruptive. According to the Halbig plaintiffs, “continued uncertainty” over whether Obamacare will be defunded “is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending.”
- If the full DC Circuit agreed to hear the case, however, that “would cause delay without providing any certainty,” because the Supreme Court may ultimately decide to take the case.
- Thus, the DC Circuit must not near this case, and it must “proceed immediately” to a “final resolution by the Supreme Court.”
On the surface, this argument may have some appeal, but it collapses upon a fairly minimal amount of scrutiny. It would indeed be disruptive if much of the Affordable Care Act were defunded, and the existence of this lawsuit does raise some uncertainty over whether or not that will happen. It would be even more disruptive, however, if President Obama were deposed because the Supreme Court held that he was born in Kenya, or if the federal tax code were held unconstitutional, or if people could immunize themselves from the law by declaring themselves “sovereign citizens.” If the mere fact that a plaintiff raises a potentially disruptive legal argument were grounds for removing all obstacles to immediate Supreme Court review, then the Court’s docket would be clogged with cases brought by birthers, tax protesters and sovereign citizens.
The reason why this doesn’t happen is that the 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.
Perhaps recognizing that their legal arguments against further DC Circuit review were not likely to carry the day, Obamacare’s opponents turned to the conservative press to litigate their case in the media. A full hearing by a federal appeals court, what is known as an “en banc” hearing, is an unusual proceeding. But the Federal Rules of Appellate Procedure provide for en banc review when a case “involves a question of exceptional importance.” The plaintiffs in this case admit that “[t]here is no doubt that this case is of great national importance” in their most recent brief to the court — so they actually admit that this case warrants en banc review.
Additionally, the official commentary on the federal rule dealing with en banc hearings explains that “[i]ntercircuit conflict is cited as one reason for asserting that a proceeding involves a question of ‘exceptional importance,’” so that is a second reason why this case was a prime candidate for en banc review.
Yet you would never guess these facts if you read the conservative Wall Street Journal’s opinion page, which claims that “if the D.C. Circuit rehears the case en banc, it would be a sharp break from history.” Nor would you learn it from the National Review, which suggests that “the recent D.C. Circuit panel decision on Obamacare exchange subsidies inHalbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard foren banc review.” Or if you read the Volokh Conspiracy, a popular libertarian legal blog read by many judges and their law clerks, which claims that “the bar on en banc rehearing in the D.C. Circuit has been higher than the bar for certiorari in the Supreme Court.”
The subject of how a federal appeals court should handle the purely discretionary question of whether or not they wish to rehear a particular case rarely makes national headlines. Nor do opinion writers of any kind normally dive into arcane rules of federal appellate procedure. It is difficult to read the conservative media’s protests regarding en banc review as anything other than an attempt to paint the court’s decision to rehear the case as a partisan decision — rather than what it is, a decision that is clearly consistent with the federal rules governing these circumstances. Indeed, the Wall Street Journal op-ed quoted above it quite explicit in its claim that a decision to grant an en banc rehearing would be a partisan decision — “Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality.”
Now that the DC Circuit has ignored these attempts to scare them off with accusations of partisanship, this case no longer meets the usual criteria for Supreme Court review.
*****
Readers: The repubs are always claiming that they don’t like judges that make law from their decisions, that should be made by the legislature. They like to call them “activist judges.” However, that only seems to be true unless the judge is enacting law from the bench that they can’t get passed legislatively. Typical hypocrites conducting politics as usual, looking to do whatever needs to be done to benefit their needs.
The fact is, repubs have been in collusion with many of the judges they have appointed at the federal level to do just that. They know that they have five bought and paid for members of SCOTUS, so if it makes it to that court they will have their law passed without having to be concerned with a presidential veto.
As we all know, so far they have been doing pretty well with that tactic. So they are now trying it with Obamacare in the federal district where they have bought and paid for federal judges. In the US Court of Appeals for the District of Columbia the republicans got 2 of their judges to disagree with all the other federal districts with a decision that defunds Obamacare. They were hoping to get a diversity in different federal districts to compel SCOTUS to take up the issue and their five S.T.A.R.K. would defund Obamacare on a 5 – 4 decision.
Thankfully, this time the two crooked judges had their rulings overturned at the federal level. If they hadn’t the disgusting republicans would have deprived millions of healthcare, all to defeat Obama. If we don’t defeat these animals at the polls, this country will truly be destroyed. They are determined to take the country back to the “good ‘ol days” when white males were truly America’s Affirmative Action Beneficiaries, where government actively gave white males preferential treatment and status above OTWs and white females. Don’t ever make the mistake and get lazy thinking they won’t give it their best to get there.
Thoughts? Blog me.
Mike, TM: All I can say is that Obama is thinking with his big head and he’s got a big pair. He’s not just the president of the U.S., he is a world leader, influencing others to join him – something no other president has ever done – another first for Obama. Simply awe-inspiring.
Social Butterfly: I am right there with you even before you schooled me on what you know about Hillary Clinton. (Thank you.) I just didn’t totally feel it with Hillary, but like you, I will vote for her if she is the Dem on the ticket. Therefore I will back her because I will do anything to keep the Dems in power.
I am a huge supporter of Elizabeth Warren, and would support her wholeheartedly if she were the Dem candidate. If Clinton hadn’t run before and lost to Obama, Warren would probably go for it, and like Obama, she could be the underdog that could win. Unfortunately, Clinton supporters are not going to let Hillary lose twice, and Warren knows she would split the party by running. If Warren runs it will most likely be after Clinton or whoever wins the presidency in 2016 – Let’s make it a Dem again. (Ugh, I can’t believe I am even talking about 2016 – Let’s get through the midterms first eh?!)
Zen Lill: Happy that you did your homework, found good doctors to be on your team, and the growth is gone. Thanks for sharing your story. I HOPE it will inspire others to take action as you did. Be well.
Howie et al: Happy Jewish New Year!
Peace out.
Lastly, greed over a great story is surfacing from my “loyal”(?) readers. With all this back and forth about who owns what, that appears on my blog, let me reiterate that all material posted on my blog becomes the sole property of my blog. If you want to reserve any proprietary rights don’t post it to my blog. I will prominently display this caveat on my blog from now on to remind those who may have forgotten this notice.
Gratefully your blog host,
michelle
Aka BABE: We all know what this means by now :)
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September 25th, 2014 at 2:47 pm
Thanks, Mischa, just don’t want anyone repeating my life mistakes…
I went back a few weeks bc I was looking for something …
Never noticed that Stone said ‘enough said’ interesting comment bc what I did notice (and no I don’t need to troll here for dates I have a full calendar whenever I want it and that includes visitors bringing nice thoughtful items while I’m down) is that you didn’t uphold your masculinity, your own right to choose what you want, you went with the flow of women telling you what you should think, what you should do, because they rocked your world (or something) or they felt that you should abide by their rules of what black men ‘should’ do – you certainly came across as a black man that knows how to carry himself, just curious why would you listen to ‘rules’ others make up … (Nor did any of those commenters sound like women for other women, white women were clearly under bus tires, lol) … I could’ve misread the comment intent though it really does fly under the radar sometimes just how controlling people can be, goes for both sexes…
Just an observation … It’s not a putdown, many men have said, ‘enough said’ just to shut down whipped up drama they don’t want but caused (sort of unintentionally) … A playah’s life – lol
& repugs always do what’s convenient so dems…convenient or not, vote!!!
& if I hear one more ignorant statement about the latte salute from Obama I’m going to hit somebody : )
…it is not mandatory for a president to salute a military man, it’s required for a military man to salute another military man, it was a polite touch out of Reagan’s own sense of discomfort that it was born at all, it is not mandatory … Get a grip and stay focused on what matters …
That is exactly the kind of dumb stuff people get focused on (thank left hand does this, while the right hand is doing that) no wonder this country is in the state it’s in all we have to do is get the media to get people focused on something dumb and other things play out however they play out because were busy focusing on minutia that doesn’t matter…*sigh*
Luv, Zen Lill
September 25th, 2014 at 6:05 pm
The right will try anything to stop Obama care.
September 25th, 2014 at 6:06 pm
An excellent, and well written, example of how America’s ‘tiered’ judiciary system works.
My sincere appreciation to kstreet for posting this important issue.
September 25th, 2014 at 6:06 pm
HaHaHaHa!! The Republicans are so mad they could spit. HaHaHaHaHa!!
September 25th, 2014 at 6:06 pm
We shouldn’t celebrate too soon. While I’m sure the D.C. Circuit Court of Appeals, en banc, will rule in favor of Obamacare, I really can’t be certain that the Republican dominated Supreme Court won’t violate precedent and hear the case even in the absence of a conflict between Circuits. All it takes is a vote of four justices to hear a case – and considering the horrendous, disingenuous, partisan reasoning in Citizens United and Hobby Lobby, it wouldn’t be too out of the question for this Supreme Court to come up with some out of their ass justification for doing so. If they take it, all bets are off.
September 25th, 2014 at 6:07 pm
One would believe that this finally will put an end to the ACA opposition — exdcept the GOP. I’m sure they won’t stop trying this easily..
September 25th, 2014 at 6:08 pm
7 courts laughed the argument out of court, this was the ONLY one siding with the idiots.
Trying to hustle it to the SCC because this time they got something on Roberts to get him to change his vote?
The moral of the story is the DC Circuit Court is the minime of the SCOTUS, remember when the Republicans blocked Obama’s appointments and tried to gerrymander the whole court?
This is why winning the Senate is vital.
September 25th, 2014 at 6:08 pm
We also need to neuter the conservatives on SCOTUS.
So we need to keep the WH in our column until Kennedy and Scalia either keel over in their seats (a la Rehnquist) or retire, and when Justice Bader-Ginsberg decides to retire and is replaced by another Democratic president appointee. This will go a LONG way in stemming the endless frivilous lawsuits paid for by billionaires like the Koch Bros and their ilk in their quest to turn this democracy into a corporatist State.
September 25th, 2014 at 6:09 pm
This is so true! We must win the Senate!!
September 25th, 2014 at 6:09 pm
We need to also focus on WINNING THE HOUSE!!
It would be soooo awesome to rid the Congress of this cancer, known as teabaggeritis.
September 25th, 2014 at 6:11 pm
“This is why winning the Senate is vital.” Winning and keeping the Senate is vital to our rights
And why 2016 is equally important.
September 25th, 2014 at 6:11 pm
We need the senate *and* congress plus we need to focus harder at state level offices
because if we keep ignoring those then the republicans will be able to keep their gerrymandered districts.
September 25th, 2014 at 6:12 pm
Invoking the legal argument of STFU.
September 25th, 2014 at 6:13 pm
I got mine therefore screw YOU – one of the “mottos” of the GOP party!
September 25th, 2014 at 6:13 pm
This actually seemed to be one of the more appealable pieces of the ACA
We’re giving tax money to people who then are forced to give it to private corporations. But since they do the same thing with my taxes that go to Xe and Haliburton and GD, the precedent would seem to be in favor of the ACA.
ETA: Transferring tax dollars to corporate profits was one of the main goals of the act, so this will not be repealed.
September 25th, 2014 at 6:14 pm
I guess the papers will be full of articles talking about how Obamacare has been upheld!
I won’t hold my breath….
September 25th, 2014 at 6:14 pm
Thank you for the post, Michelle.
I vaguely remember this happening. I appreciate this follow up and hope you/someone will keep letting us know about this. I can’t keep up! Thank you again.
September 25th, 2014 at 6:16 pm
So…
It’s going to the full DC Circuit, which is expected to side with Obama, and if that happens, it will mesh with what came from the Fourth Circuit, and it won’t need to go to the Supreme Court?
September 25th, 2014 at 6:16 pm
PAGING HARRY REID — LET’S GET THOSE FEDERAL COURT APPOINTMENTS UP AND APPROVED ASAP.
September 25th, 2014 at 6:16 pm
In my 8th Grade Civics class, and subsequent University’Grad-school level study of the Constitution
The plaintiffs’ arguments in this case are weak and are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.
I came to understand that the reason we give life time appointments to the Federal Judiciary was so that Judges could avoid taking “partisan stakes” in political issues.
I guess I mis-learned.
September 25th, 2014 at 6:18 pm
Iliyah#14, But they really are special and they really deserve to have everything.
September 25th, 2014 at 6:19 pm
Iliyah#14, Unless they have nothing and vote GOP just for the brand.
Because they are voting color.
September 25th, 2014 at 6:20 pm
Don’t forget – part of the ACA mandates that the VAST majority of what you pay in premiums
goes DIRECTLY to your actual medical coverage. No padding some board member’s pockets. That percentage is something like 80 or 85% if memory serves. I actually got a $95 check back from my insurance company not long after the ACA took effect.
September 25th, 2014 at 6:22 pm
Trish#18, not necessarily.
The government asked for a 30 day extension to respond to the petitioners in the King v. Burwell Supreme Court appeal. The government has until October 3rd to respond and then the petitioners usually have 14 days to respond to the government’s response.
The Supreme Court could still elect to hear King v Burwell if it gets into them by October. The D.C. Circuit won’t be hearing Halbig v. Burwell till December so at this point the Supreme Court’s decision to take the case or not is paramount because if the Supreme Court elects to hear King v Burwell it obviates the need for the D.C. Circuit to rehear Halbig v Burwell.
If SCOTUS elelcts to hear the case I’d put money on King v. Burwell being overruled.
September 25th, 2014 at 6:25 pm
Great news. Thanks for posting it Michelle.
September 25th, 2014 at 6:25 pm
Defunding Obamacare would be disastrous for people who can barely afford the costs of insurance.
September 25th, 2014 at 6:26 pm
Non-partisan judges was a reason for lifetime appointments, but not a guarantee.
Since Reagan, the republicans predominately nominate ultra-partisans to the bench.
September 25th, 2014 at 6:31 pm
I agree with you on both accounts Zen Lill#1. If I lived on the West coast I would not hesitate to ask you to have a cup of coffee and a scone with me when I was in your area.
September 25th, 2014 at 6:32 pm
I expected en banc review, but I still think this heads to SCOTUS.
September 25th, 2014 at 6:33 pm
Anyone arguing that there’s no difference between the parties is a fucking moron who can simply go to hell. -
September 25th, 2014 at 6:38 pm
Levi#29, I hope it does not.
It would need four for cert. The Fourth Circuit one is closer to cert I would think.
September 25th, 2014 at 6:57 pm
The filing deadline for administration’s answer to the cert request for the 4th Circuit case has been delayed (at DoJ request) by 30 days. See SCOTUSblog http://www.scotusblog.com/2014/09/delay-on-health-care-subsidies-case/#more-217283
In the letter asking the Supreme Court for more time to file a brief in opposition in King v. Burwell [the 4th Circuit case], the Justice Department said that en banc request is “directly relevant” to the Court’s consideration of the Fourth Circuit case.
If the D.C. Circuit were to reopen the case there before the en banc court, that could raise the possibility that the outcome could be different, thus eliminating the conflict that now exists.
September 25th, 2014 at 8:02 pm
Ruth#32, Also, note this from the DC Circuit’s order:
FURTHER ORDERED that the oral argument before the en banc court be heard at 9:30 a.m. on Wednesday, December 17, 2014, in Courtroom #20, Sixth Floor with this from SCOTUSblog entry:
If the Supreme Court does step in to decide that question, it could do so in time for a ruling in the current Term, if it accepted for review any time up to about mid-January.
With a December 17 date for oral argument in the DC Circuit, the chances of an opinion in time to file with SCOTUS by mid-January are near nil. And, I don’t think the Court will take the 4th Circuit case while the DC Circuit is proceeding. So, subsidies will remain through 2015.
September 25th, 2014 at 8:05 pm
I doubt that Scalia, Thomas, Alito, and Roberts would force the matter without Kennedy. It strikes me that he is someone who wants “regular order”, and with SCOTUS, that means slowing cases until a circuit split develops. I cannot see him supporting this being rocketed to the docket. Without him, the four lose.
September 25th, 2014 at 8:08 pm
I agree with you Ruth#32. It will take months to rule after oral argument and there is no rush because the panel opinion is withdrawn pending en banc review.
If the S.Ct. takes it, and it really is not their kind of case — a typo — not a constitutional question — it won’t be heard until the term starting in October 2015. (I think it is October)
No ruling would happen until spring 2016.
I don’t see Kennedy taking it. I also don’t see Roberts overturning a big part of the law on a typo. Yes, they ruled on the medicaid expansion regarding coercion of states, but that was based on federalism principles and I think Ginsburg joined. That was 6 to 3.
I think this attack on Obamacare is facing a “death panel.” :-)
September 25th, 2014 at 8:10 pm
Matthew#35, The Medicaid issue was joined by Kagan and Breyer, not Ginsburg.
September 25th, 2014 at 8:11 pm
Thanks Kate#36. Poor memory. So it was 7 to 2.
September 25th, 2014 at 8:14 pm
Mathew#37, Yes. I think I commented on this blog about it. I think I speculated that it might have been a back room deal to get Roberts on the mandate.
It was a ridiculous decision BTW.
September 25th, 2014 at 8:30 pm
There is a case in Indiana that will find its way to the 7th Circuit Court of Appeals at some point. Take a look at the makeup of that appeals court. There are more REAGAN-APPOINTED justices than justices appointed by Democratic presidents combined.
I have long thought that the D.C circuit would reverse this panel decision, but the reality is, THIS SCOTUS will hear this case…and I don’t think it will end well our side, the ACA and its subsidies.
We can call it a typo, but SCOTUS will tell our side to have congress change the law…and it won’t be able to if the creeps maintain their hold on the House.
September 25th, 2014 at 10:19 pm
Lucy#39, That’s what we thought when they took the original case against the ACA. Since they allowed it to go forward then, I don’t see them reversing themselves now that it’s up and running.