Skip to main content

Why court's blow to Obamacare won't stick

By Brianne Gorod
July 24, 2014 -- Updated 1223 GMT (2023 HKT)
STORY HIGHLIGHTS
  • Brianne Gorod: D.C. Circuit panel got it wrong by dealing blow to how Obamacare works
  • She says 4th Circuit ruling was right and that both challenges part of right's attempt to gut law
  • D.C. Circuit ruled against federal subsidies for millions signed up, ignoring law's intent, she says
  • Gorod: Review of decision by entire D.C. Circuit Court will likely reverse flawed decision

Editor's note: Brianne Gorod is appellate counsel at the Constitutional Accountability Center, a progressive law firm and think tank. Gorod is a former law clerk to Supreme Court Justice Stephen Breyer and was an attorney-adviser in the Justice Department's Office of Legal Counsel. She is one of the authors of "friend of the court" briefs the Constitutional Accountability Center filed on behalf of members of Congress and state legislatures responding to two challenges to the Affordable Care Act.

(CNN) -- On Tuesday morning, the U.S. Court of Appeals for the District of Columbia Circuit killed a regulation that is key to making Obamacare work. Its decision in Halbig v. Burwell, if it were the last word on the matter, would have significant -- and damaging -- consequences for millions of Americans who purchase health insurance on exchanges established and run by the federal government.

Fortunately, it won't be the last word on the matter. And the decision issued later Tuesday by another federal appellate court -- the 4th Circuit -- in King v. Burwell makes clear why: The D.C. Circuit's decision got basically everything wrong. It misunderstood the text, structure and purpose of the Affordable Care Act. The Justice Department has already indicated that it will ask the entire D.C. Circuit to review the Halbig v. Burwell decision, and when it does, it will no doubt reverse it.

These two cases are both part of what Judge Harry Edwards, the dissenting judge in Halbig, termed a "not-so-veiled attempt to gut" the Affordable Care Act. As the members of Congress who led the enactment of the law made clear in a "friend of the court" brief they submitted to both courts this year, the fundamental purpose of the statute was to achieve universal health care coverage, and the Internal Revenue Service providing tax credits that act as subsidies so low- and middle-income Americans can pay for health care is central to doing so.

White House: We're still ahead

The plaintiffs in these challenges argue that these tax credits should not be available to people who buy insurance in the 36 states with exchanges operated by the federal government -- that is, who got their subsidized health coverage through HealthCare.gov, not a state-run exchange. It's a position that's not only completely without legal merit -- "tortured" and "nonsensical," according to one of the 4th Circuit judges -- it's also one that would critically undermine how Obamacare works.

What the Obamacare court decisions mean for you

But rather than looking at the law as a whole and considering what it was attempting to accomplish, the D.C. Circuit judges focused on one small provision of what is a long and complicated statute. Edwards called the plaintiffs' argument "illogical when cast in the context of the statute as a whole."

Indeed, the plaintiffs themselves appeared to recognize how flawed their argument, based on the statute's language, was and thus manufactured an explanation for why Congress would have written the statute to eliminate the tax credits on federally facilitated exchanges. According to the plaintiffs, Congress wanted to encourage the states to set up their own exchanges. The only problem, as Edwards noted, is that the "claim is nonsense, made up out of whole cloth." The legal reasoning in the majority's opinion is so weak it is difficult to understand it as anything but a political decision.

And that is what makes particularly galling the judges' professed "reluctance" to reach their conclusion. These judges assert that their hands were tied by the "limited" role of judges in our democratic system. In other words, they imply, their decision -- which could have massive consequences for millions of Americans -- was actually an exercise of judicial restraint.

Appeals courts differ on Obamacare

There's nothing restrained about misreading a law's text, disregarding its structure and ignoring its purpose. In fact, it was the 4th Circuit judges who exercised true judicial restraint. Two of those judges concluded that the statute was unclear and that they should therefore defer to the agencies charged with implementing the law -- in this case, the IRS, which would provide the tax credit subsidies. (The other judge concluded that the statute is unambiguous, but in the other direction, and requires that tax credits be available on federally facilitated exchanges.)

As those judges recognized, where a law is unclear, the proper role of a judge is generally to defer to a reasonable construction offered by the executive branch agencies charged with implementing the statute.

The judges in Halbig seemed so determined to undermine the Affordable Care Act that they ignored this bedrock legal principle. Fortunately, they won't have the last word on the subject.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
December 20, 2014 -- Updated 0242 GMT (1042 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT