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In its ACA opinion today, the Court significantly narrowed its “Chevron-deference” doctrine. I’m glad. Even despite the immediate repercussions for EPA authority.

[T]oday’s victory may have been even more decisive than it looks at first glance.

It isn’t just that the Court ruled six-to-three in favor of the government’s position, with John Roberts and Anthony Kennedy joining the Court’s liberals in support of a single, non-splintered decision, though that’s important.

It’s also that Roberts’ opinion may have precluded any future efforts by a Republican president to use executive discretion to cancel the subsidies for the millions of people on the federal exchange. [Italics in original.] This option might have been left open if the ruling had been written differently.

A decisive win for Obamacare, Greg Sargent, Washington Post, today

Indeed.

The Court issued opinions in two of its seven remaining cases this morning, in this one, King v. Burwell, is in my opinion the lesser-significant of the two.  Texas Department of Housing and Community Affairs v. Inclusive Communities Project, in which the Court, ruling 5-4, upheld as both intended by the Fair Housing Act and within permissible constitutional bounds the right to invoke that Act to challenge government agency and private business actions that, while not overtly racially discriminatory, plainly have a discriminatory effect.  It is a tremendously important opinion, even beyond the housing issue.  And no slouch in the significance department is another 5-4 opinion issued this week, Kingsley v. Hendrickson, that began, finally, the process of limiting what has been the tacitly unfettered authority of prison guards to brutalize both pretrial detainees and post-conviction inmates—although the dissents in that opinion deserve their own post, and soon will get one.

But the far-reaching importance of the King opinion today, authored by Roberts, is in its choice to interpret the statute directly as providing for the subsidies irrespective of whether a state had designed and runs its own insurance exchange or instead defaults to the option by which the federal government created and runs the state’s exchange.  The government had argued both that that was the clear intent of the statute in providing for the default (the backup) option, and, alternatively, that under a Court-created doctrine known as “Chevron deference,” courts are required to give deference to the statutorily designated federal agency—here, HHS—in the agency’s reasonable interpretation of an ambiguous provision in the statute.

The Chevron-deference option would have enabled a later White House administration’s HHS to interpret the statutory language at issue—“an Exchange established by the State”—as the King plaintiffs claimed: Tax credits are available only in states in which the Exchange was set up and is run by the state, not an Exchange set up and run for the state by the federal government.

The Chevron-deference doctrine was created in a 1984 Supreme Court opinion, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., mainly for the purpose of allowing Reagan’s regulatory agency chiefs to orchestrate the industry capture of the respective regulatory agency charged with regulating the capturing industry.  Federal laws that create regulatory agencies provide that the agency itself will design regulations addressing specifics, in order to give effect to the broad design and mandates of the Act that establishes the agency.  The EPA was the original target of the Chevron doctrine, and is still the most common, I believe, but obviously the doctrine comes in handy in undermining regulations regulating the financial industry, the pharmaceutical industry, employee safety, and, well … you get the idea.

The doctrine’s stated premise is a clearly sensible one: that the very purpose of creating a regulatory agency is to have a permanent body of experts in the relevant fields employ their expertise to study the science, the technology, the methodology, and promulgate regulatory mandates and parameters that give effect to Congress’s purpose in enacting the statute and creating the regulatory agency.  But the extreme deference that the Chevron doctrine has appeared to accord to the agencies has, rather than served to effectuate congressional regulatory purposes in enacting the statutes that come within the regulatory jurisdiction of the relevant agency—the Clean Air Act vis-à-vis the EPA, for example—turned control of these agencies into political footballs.

Which was fine with the conservative justices, as long as the White House was in Republican hands.  But nearly seven years into the Obama administration, they’ve had enough, and have begun to make noises indicating a change of heart on Chevron.  They want to rein it in.  Two of them, joined by the four Democratic justices, took the first step toward that today, in King. And tomorrow, it is widely expected, in a case called Michigan v. Environmental Protection Agency, the five Republican justices will take a second, broader, and direct step, in an opinion that will strike down as beyond its authority under the Clean Air Act the current EPA’s interpretation of that statute as permitting it to regulate the release of mercury into the air by power plants.

And as a longstanding critic of the Chevron-deference doctrine, I’m thrilled with the Chevron implications of King.  As someone who’s not fond of the effects of mercury on the health of anyone or anything who breathes, though, I won’t welcome the substantive result in tomorrow’s opinion. But I hope, and think, that the issue of statutory regulation of power plants will become a somewhat potent issue in next year’s national elections.

What won’t be a national issue in next year’s elections, federal and state, are tax credits for subsidies for healthcare premiums under the ACA.  Which is precisely why Roberts and Kennedy decided that King must be decided as it was decided today.  Last March, after the argument in the case, I predicted exactly correctly what would happen, and why—and have never looked back, instead rolling my eyes at all the continued handwringing of liberal pundits so worried about the case’s outcome.

I pointed out back then that Roberts, for all his desire to fully, thoroughly, complete the circa 1980s Conservative Legal Movement’s takeover of American law, point by point by point, wants first and foremost, always—always—to provide every possible assist to Republican candidates for federal and state elective office.  Once it became clear, as it already had by the time King was argued at the Court, that a victory for the plaintiffs would spell electoral disaster for Republicans for federal and state office next year, Roberts’ vote, and the outcome of the case, was clear as well.

Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives.  So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.

Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission.  The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  (Scotusblog notes that California has a similar setup.)

Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy.  But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since.  He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front.  I mean, you never know.

Okay, you probably do know.  It won’t happen. The CW will prove right.

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The OTHER big ACA case being argued today (albeit not at the Supreme Court) concerns the statute’s alleged Disestablishment Clause

Obamacare faces two separate court challenges on Tuesday, but only one could deliver a major knockout blow to the law.

The case getting the most attention is tomorrow’s Supreme Court challenge to the health care law’s requirement for employers to provide birth control to their workers. At the same time Tuesday morning, the District of Columbia’s Circuit Court of Appeals will consider whether Obamacare allows premium subsidies to flow through federal-run health insurance exchanges. That case has been called “the greatest existential threat” to the survival of the health care law by one of Obamacare’s staunchest supporters.

The contraception case is big, but another challenge could really hurt Obamacare, Jason Millman, Wonkblog, Washington Post, yesterday

Ah. And to think that so many people think the big Obamacare cases to be argued in a federal court today are the contraceptive-mandate ones.  But not regular AB readers! That’s because y’all read this post of mine and then this one.  And you remember those posts!

But to refresh your memories about the details, I’ll quote Millman further:

The law’s opponents argue that Congress never authorized subsidies in federal-run exchanges, and they claim this was done on purpose. They say Congress wanted to incentivize states to run their own exchanges, an option that only 14 states and the District of Columbia chose in 2014.

The law’s supporters argue that the law doesn’t differentiate between federal-run and state-run exchanges, so people should be able to receive subsidies no matter who’s administering the insurance marketplaces. Further, they say the broad purpose of the law is to expand access to affordable insurance regardless of who runs the exchange.

There are four pending cases in federal court challenging the subsidies. In Tuesday’s case, Halbig v. Sebelius, a lower federal court in January upheld the IRS rule allowing subsidies in federal-run exchanges.

“The Court finds that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges,” District Court Judge Paul Friedman wrote in his decision.

Well, of course, Judge Friedman found that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges. Sure, he’s a Reagan appointee, but I published the first of my two posts deconstructing The Antidisestablishmentarianism Theory of Obamacare Illegality seven weeks before he issued his opinion agreeing that the ACA does not in fact have a disestablishment clause.  And since he’s undoubtedly an avid AB reader, he didn’t even have to read the government’s brief deconstructing the disestablishment-clause theory.  Well, maybe he did anyway, but he already knew that that clause in the ACA did not really disestablish the statute’s federal tax credits in 36 states.

So he wrote:

Looking only at the language of 26 U.S.C. § 36B(b)-(c), isolated from the cross-referenced text of 42 U.S.C. § 18031, 42 U.S.C. § 18041, and 42 U.S.C. § 300gg-91(d)(21), the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)-(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.  [Italics in original.]

Friedman’s opinion, which gets into the “Chevron deference” doctrine–don’t ask; I might tell you–illustrates just how hypocritical it would be for the Supreme Court’s conservative majority to buy these plaintiffs’ argument once this case (or one of the other three being litigated in other regional federal courts) arrives there.

Which is not to say that that is necessarily a determining impediment to their doing so; we all know better by now than to think that it.  But I do think there is a point at which this type of thing becomes so clear that it penetrates the awareness of enough people to be of fairly widespread concern.  And although the justices themselves as yet seem unconcerned, there may come a time, fairly soon, when they conclude that that unconcern is untenable as a matter of social acceptance.  Then again, I’m not sure they will care.

 

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Oh, dear. Another loopy challenge to yet another ACA provision, this one concerning the Independent Payment Advisory Board.*

A legal-news blog I read mentions an article published today on the National Review Online aspirationally titled “A Strike at the Heart of Obamacare” and subtitled “A case against IPAB is heard by the Ninth Circuit — and eventually by the Supreme Court?”  I don’t normally read the National Review and am not familiar with the article’s author, Quin Hillyer.  But the article discusses in frenzied fashion a case that will be argued on appeal next week at the Ninth Circuit Court of Appeals, the federal appellate court based in San Francisco, that hears appeals in federal cases from west-coast and several mountain states.

I did not know what IPAB stands for, so I clicked the link to the article in order to find out, and learned that the IPAB is “that monstrosity called the Independent Payment Advisory Board (IPAB), a 15-member body invested with virtually unreviewable, plenipotentiary powers.” Glad I did.

The case to be heard on appeal next week, Coons v. Lew, was filed by the Goldwater Institute and several medical practitioners, and challenges the constitutionality of the section of the ACA that creates and establishes the powers of the IPAB, the ACA provision that Hillyer says is “the law’s most obnoxious violations of Madisonian principle and essential constitutional structure.”  Which, best as I can tell from what he says about the provision, absolves the law from any obnoxious violations of Madisonian principle and essential constitutional structure.  I’ll take his word for it.

Coons, Hillyer fumes in dismay, is the only Obamacare case that has included a challenge to the IPAB, and the trial-court judge, whose ruling the plaintiffs are appealing, gave that challenge short shrift.  Why only one case making that argument?! And, why short shrift?! I’m just guessing here, but I suspect that one reason is that one of the two grounds for constitutional challenge–that Congress can’t delegate specific rulemaking functions to executive-branch agencies, because that constitutes a violation of the doctrine of separation of powers–was rejected by the Supreme Court initially many decades ago when certain New Deal legislation was at issue, and that in 1984 the Supreme Court, in an opinion called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., created what is known as the Chevron doctrine, giving executive-branch agencies broad “deference” to promulgate “regulations,” i.e., sets of substantive (as well as procedural) laws about which the agency has specific expertise.  Which suited conservatives fine during the Reagan and various Bush administrations, which, courtesy of that doctrine, had virtual carte blanche to undermine, say, the Environmental Protection Act or the Securities Exchange Act. But conservatives are having second thoughts about the wonders of the Chevron doctrine these days.

The current Supreme Court Republican majority, of course, shows no inhibition about switching sides in light of new circumstances, such as a Democratic White House.  The Chevron doctrine was too broad, but only very recently has the Court shown interest in narrowing it–in a way that probably would allow the doctrine to be broadened again, during the next Republican administration.

So the Chevron doctrine alone probably doesn’t explain why only the Goldwater Institute and a few Western-state doctors are the only ones to challenge the IPAB and questions related to review of the Board’s payment recommendations. And I haven’t read the trial judge’s ruling, and in fact was unaware of the case until I read Hillyer’s article.  But I’ll go way out on a limb here and suggest another sorta large problem with the challenge to that section of the ACA.  Whatever the Board’s plenipotentiary powers actually are, and whatever “plenipotentiary” means–I actually have no idea what the Board’s powers are, but the title of the agency is after all the Independent Payment Advisory Board, so presumably it’s an advisory board–what is clear is that neither the Medicare Act nor the ACA requires healthcare providers to accept Medicare insurance.  These healthcare professionals are no more required by law to accept Medicare patients than they are to accept patients who have insurance through one or another private company, or who have only catastrophic insurance, or Medicaid, or no insurance.

Their claim, in other words, is ridiculous.  But it does have the advantage of carrying with it the Madisonian Freedom/Liberty tag, a label that the Koch right confers upon anything it wishes, because that surely will gain the attention of the Fab Five’s law clerks once the Court is asked to hear the case.  Normally, they attach this label to anything concerning property rights or wealth or income accrued or to be accrued, actually or ostensibly, through the private sector, but here they’re branching out.  Here, they’re claiming a Madisonian constitutional right by the private healthcare industry to Medicare payments set by the private healthcare industry.

Farm subsidies and Medicare payment levels set by the healthcare industry forever! That was Madison’s motto.

Keep your government hands off my Medicare payment levels!  Who knew Madison was an M.D.?

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*Post edited slightly for clarity after initial posting.

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