President Obama and Senate Majority Leader Harry Reid packed the D.C. Circuit Court of Appeals this year in hope of dodging another Supreme Court review of ObamaCare. But now it appears their gambit has failed, as the Justices announced Friday that they’ll hear a serious statutory challenge. King v. Burwell will test, as so many other cases have in the Obama era, whether this Administration can unilaterally rewrite the law to suit its political ends. The announcement means that at least four Justices want to hear the arguments in King, which claims that under the plain text of the ObamaCare statute subsidies can only flow through exchanges “established by the State.” The Administration via the IRS wrote its regulation to say subsidies could flow through the federal exchange too. This is crucial to the law’s future because 36 states have defaulted to the federal exchange. The Fourth Circuit Court of Appeals ruled in favor of the government, though the opinion said it was a close call. A 2-1 panel of the D.C. Circuit ruled the other way, only to have the decision vacated by the entire D.C. Circuit, which voted to hear the case en banc in the coming months. Mr. Reid broke Senate filibuster rules to add three liberals to the D.C. Circuit with the expectation that the en banc court would favor the Administration. At a July 22 press conference, Mr. Reid boasted about his filibuster play and proclaimed that, “It seems clear to me that that decision will be overturned.” Then there would be no splits between the circuit courts, and the Supreme Court would be less likely to take the case. Harry has had a rough week. By taking the Fourth Circuit appeal in King, the Supreme Court makes his machinations moot. The D.C. Circuit now needn’t hear its case en banc, because the Supremes are already hearing the same question. Oral argument is likely to take place in the spring with a ruling before July. The Supreme Court is right to settle the matter as soon as possible. Legal uncertainty hangs over the law’s implementation, and the longer it takes to be settled the greater the eventual tumult if the IRS diktat is overturned. And on the merits it should be. The state-exchange language is no drafting error. Jonathan Gruber, an architect of the law, said in 2012 that the text was written this way to give states an incentive to set up their own exchanges. The IRS pulled the federal-exchange switcheroo in order to salvage Mr. Obama’s domestic-policy prize. But Congress writes laws, and federal agencies can’t decide on a whim to rewrite them because the original language becomes politically inconvenient. If the Justices tolerate doing so in King, it will be open rewrite season across the federal bureaucracy. It’s hard to predict how the High Court will rule, as we learned in the ObamaCare case on the individual mandate. Chief Justice John Roberts saved the day for Mr. Obama by ruling that the mandate was justified because it was really a tax. Never mind that in writing the law, Democrats had repeatedly declared that it wasn’t a tax. But the current Court has shown growing impatience for this Administration’s abuses of executive authority. “It is not our job to protect the people from the consequences of their political choices,” the Chief Justice famously wrote in the first ObamaCare case. We are about to find out if he thinks his job is to save the President from the consequences of willfully rewriting black-letter law. online.wsj/articles/obamacare-goes-to-rewrite-1415404718?cb=logged0.5149136331715307
Posted on: Sat, 08 Nov 2014 03:15:07 +0000
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