Hours after the D.C. Circuit handed down the Halbig decision, discussed this morning , the Fourth Circuit handed down a parallel ruling with the opposite result . Coincidence? Or did the three Democrat-nominated Fourth Circuit judges time the release of their opinion until just after the Halbig decision was issued, to blunt the public perception that the courts had ruled against Obama? I’ll deal with the shortcomings of the Fourth Circuit’s so-called logic in more detail in coming days, but there’s one point I want to emphasize now: the decision emphasizes that, in theory, a Republican president could undo ObamaCare without the need for Congressional action, or even a favorable Supreme Court ruling. How’s that? The answer is contained in the logic of today’s Fourth Circuit opinion. The Fourth Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary” . . . and never really makes the argument that this is the logical interpretation. If a judicial opinion can be sheepish, then this opinion was bleating when its author wrote this passage: And if you want a truly risible passage, check out this bit from the concurrence: “Established by the state” means “established by the state” . . . except when it does not. Classic. The disregard for the text could be more blatant only if he said: “Established by the state” means “established by the state” . . . except when I say it doesn’t. Ultimately, these judges are clearly too embarrassed to hold that the Obama administration position is so clearly right that it is the only logical interpretation. Instead, they say: well, the opponents of the law have a pretty good point, but we’re going to say the language is ambiguous, and call the arguments about its meaning a wash. And that means we defer to the interpretation of the relevant government agency . . . in this case, the IRS. The Fourth Circuit thereby relies on something called “ Chevron deference,” which applies the rule (which strikes me as absurd) that courts must defer to reasonable agency interpretations of ambiguous statutes. So let’s say that this goes up to the Supreme Court. Either they will rule the way the D.C. Circuit ruled in Halbig , or the way the Fourth Circuit ruled today. If they apply the same logic that the Fourth Circuit applied today, the presidency changing hands could change everything. Here’s why: if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one . The U.S. Supreme Court’s Chevron case that created “ Chevron deference” said: The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. In other words: agencies can change their minds, and we will continue to defer to them. So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.” Meaning that, even if Democrats retake the Senate in 2016 (assuming Republicans take it this year, as I expect they will), we would not need them to effect this rule change. A President Cruz could write the Halbig interpretation into law, just like that. Boom. Done. And if that means ObamaCare won’t work, well, hey. Live by Chevron deference, die by Chevron deference.

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How a Republican President Could Kill ObamaCare Without Congress or the Supreme Court

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Hours after the D.C. Circuit handed down the Halbig decision, discussed this morning , the Fourth Circuit handed down a parallel ruling with the opposite result . Coincidence? Or did the three Democrat-nominated Fourth Circuit judges time the release of their opinion until just after the Halbig decision was issued, to blunt the public perception that the courts had ruled against Obama? I’ll deal with the shortcomings of the Fourth Circuit’s so-called logic in more detail in coming days, but there’s one point I want to emphasize now: the decision emphasizes that, in theory, a Republican president could undo ObamaCare without the need for Congressional action, or even a favorable Supreme Court ruling. How’s that? The answer is contained in the logic of today’s Fourth Circuit opinion. The Fourth Circuit opinion struggles to say that “established by the state” can mean “established by the Health and Human Services Secretary” . . . and never really makes the argument that this is the logical interpretation. If a judicial opinion can be sheepish, then this opinion was bleating when its author wrote this passage: And if you want a truly risible passage, check out this bit from the concurrence: “Established by the state” means “established by the state” . . . except when it does not. Classic. The disregard for the text could be more blatant only if he said: “Established by the state” means “established by the state” . . . except when I say it doesn’t. Ultimately, these judges are clearly too embarrassed to hold that the Obama administration position is so clearly right that it is the only logical interpretation. Instead, they say: well, the opponents of the law have a pretty good point, but we’re going to say the language is ambiguous, and call the arguments about its meaning a wash. And that means we defer to the interpretation of the relevant government agency . . . in this case, the IRS. The Fourth Circuit thereby relies on something called “ Chevron deference,” which applies the rule (which strikes me as absurd) that courts must defer to reasonable agency interpretations of ambiguous statutes. So let’s say that this goes up to the Supreme Court. Either they will rule the way the D.C. Circuit ruled in Halbig , or the way the Fourth Circuit ruled today. If they apply the same logic that the Fourth Circuit applied today, the presidency changing hands could change everything. Here’s why: if Obama’s IRS can issue one rule, then President Ted Cruz’s IRS can issue a different one . The U.S. Supreme Court’s Chevron case that created “ Chevron deference” said: The fact that the agency has from time to time changed its interpretation . . . does not . . . lead us to conclude that no deference should be accorded the agency’s interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. In other words: agencies can change their minds, and we will continue to defer to them. So, applying the Fourth Circuit’s reasoning, an IRS under Obama can say that an exchange “established by the state” can mean “established by the federal government.” But an IRS under Ted Cruz, applying the classic formulation of Monty Python’s argument sketch, could say: “No it doesn’t.” Meaning that, even if Democrats retake the Senate in 2016 (assuming Republicans take it this year, as I expect they will), we would not need them to effect this rule change. A President Cruz could write the Halbig interpretation into law, just like that. Boom. Done. And if that means ObamaCare won’t work, well, hey. Live by Chevron deference, die by Chevron deference.

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[guest post by Dana] This morning, Patterico posted on the decision in the Halbig case and legislative “intent” versus the plainly clear language of a law: The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop. As expected, the White House begs to disagree : JOSH EARNEST: What I do anticipate, the Department of Justice will do, is they will ask for a ruling from the full D.C. Circuit. as you know, this was a decision that was issued just by three members of the D.C. Circuit. Two of whom ruled against the federal government and one agreed with the government’s position. Now, it’s important for people also to understand that some of the district courts that have thrown out the case have been decided by judges who use some pretty strong rhetoric in doing so. There’s a judge in this case, at the district level, who said there’s no evidence in the statute itself orn (sic) the legislative history of any intent by Congress to support the claims that are made by the plaintiff. In another case that was making the same legal argument, a judge wrote that the theory propounded by the plaintiffs was, quote, not a viable theory. The last thing that is important, and this is — there’s a lot of high-minded case law that is applied here. There’s also an element of common sense that should be applied as well. You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace. I think that’s a pretty clear intent of the Congressional law. This will work the way through the legal process, and we’re confident in the legal case that the Department of Justice will be making. FOLLOWUP QUESTION: Obviously, as these cases work through the legal system, there could end up being a practical impact on people who are receiving subsidizes. Can the health care law work effectively and continue to, as you say, be affordable for Americans without the subsidizes being available in all states? EARNEST: We are confident in the legal position we have. QUESTION: If that the legal position no longer becomes tenable, can the law work if these subsidies are not widely available? EARNEST: That is a hypothetical that we will maybe entertain at some point. Video at the link. –Dana

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White House Response to Halbig Decision: It’s The Intent That Matters

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[guest post by Dana] This morning, Patterico posted on the decision in the Halbig case and legislative “intent” versus the plainly clear language of a law: The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop. As expected, the White House begs to disagree : JOSH EARNEST: What I do anticipate, the Department of Justice will do, is they will ask for a ruling from the full D.C. Circuit. as you know, this was a decision that was issued just by three members of the D.C. Circuit. Two of whom ruled against the federal government and one agreed with the government’s position. Now, it’s important for people also to understand that some of the district courts that have thrown out the case have been decided by judges who use some pretty strong rhetoric in doing so. There’s a judge in this case, at the district level, who said there’s no evidence in the statute itself orn (sic) the legislative history of any intent by Congress to support the claims that are made by the plaintiff. In another case that was making the same legal argument, a judge wrote that the theory propounded by the plaintiffs was, quote, not a viable theory. The last thing that is important, and this is — there’s a lot of high-minded case law that is applied here. There’s also an element of common sense that should be applied as well. You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace. I think that’s a pretty clear intent of the Congressional law. This will work the way through the legal process, and we’re confident in the legal case that the Department of Justice will be making. FOLLOWUP QUESTION: Obviously, as these cases work through the legal system, there could end up being a practical impact on people who are receiving subsidizes. Can the health care law work effectively and continue to, as you say, be affordable for Americans without the subsidizes being available in all states? EARNEST: We are confident in the legal position we have. QUESTION: If that the legal position no longer becomes tenable, can the law work if these subsidies are not widely available? EARNEST: That is a hypothetical that we will maybe entertain at some point. Video at the link. –Dana

Excerpt from:
White House Response to Halbig Decision: It’s The Intent That Matters

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Halbig: Textualism Wins, Obama Loses

On July 22, 2014, in Barack Obama, Congress, by TandyAnivitti

The long-awaited Halbig decision is out, and the result is bad for Barack Obama and his oppressive ObamaCare law. The panel has voted 2-1 that Congress did not authorize subsidies for plans bought on exchanges established by the feds: Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,”we reverse the district court and vacate the IRS’s regulation. I told you on July 7 : “I am now convinced that the judges on the panel will rule 2-1 against Obama.” Always trust content from Patterico. Here’s what the controversy was about. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available. Plain meaning. Textualism. Ain’t it great? For now, temper your enthusiasm. The decision will certainly taken up by the entire D.C. Circuit Court of Appeals en banc , and with all the new Obama-appointed judges there, it doesn’t look good for today’s decision to be upheld. (But you never know.) Then the case will be appealed to the Supreme Court, and who knows what they’ll do? But for now, it’s a good day. Conservatives actually win one for a change. The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period . Full stop. Conservatives, I expect, understand that now. I am still making my way through the opinion. More updates as I read the decision. UPDATE: Unsurprisingly, the opinion is written by Judge Griffith, with a dissent from Judge Edwards. Judge Griffith focuses primarily on the plain meaning of the language in the law, examining legislative history only as a backup, to show that the legislative history wouldn’t make any difference. The concurrence by Judge Randolph captures exactly what I have been saying here in recent weeks: As Judge Griffith’s majority opinion—which I fully join—demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks. The only way you could get to the interpretation/distortion that Obama advocates is by ignoring the “plain meaning” repeatedly cited by the majority, and by desperately clawing at some “intent” not apparent in the words of the statute. This is how leftists try to undermine the rule of law. Today, it did not carry the day. We’ll see what happens going forward.

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Halbig: Textualism Wins, Obama Loses

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