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On the other hand: Fourth Circuit upholds ObamaCare subsidies for federal exchange consumers
Hotair ^ | 07/22/2014 | AllahPundit

Posted on 07/22/2014 11:15:41 AM PDT by SeekAndFind

Well, this is awkward.

Unlike the D.C. Circuit, which split 2-1, the majority here was 3-0. Even so, the most noteworthy thing about the opinion is how tormented the court seems in trying to determine what Congress intended when it said that subsidies should be available only on “an exchange established by the State.” From page 20:

k1

Page 24:

k2

Page 28:

k3

If they can’t decide what the key phrase was designed to do, why don’t they follow the D.C. Circuit’s lead and stick with the plain text? In the first excerpt above, the court frankly admits that the language of the law seems to support the plaintiffs’ argument more strongly than it does the government’s. But that’s not good enough, they go on to say; in a case like this, where they’re analyzing a rule promulgated by a federal agency (the, er, IRS) and the meaning of the underlying statute is unclear, it’s supposed to defer to the agency’s interpretation of the law if that interpretation serves the larger purposes of the statute. Which, says the court, it does. The purpose of ObamaCare is to encourage people to buy health insurance, whether through incentives like subsidies or penalties for noncompliance like the mandate. The IRS decided that it’d be silly to read “an exchange established by the State” as excluding the federal exchange, since that would remove a huge financial incentive to buy insurance for many millions of Healthcare.gov users. Plus, the only way to make O-Care work economically is to have lots of people, especially healthy people, jumping into the risk pool. Denying subsidies to federal exchange consumers would defeat that purpose. Held: The subsidies are still valid.

That means we have a circuit split — for now. Whenever two federal appellate courts rule differently on the same issue, it’s almost a cinch that the Supreme Court will end up taking the case to resolve the ambiguity.

It would be weird, after all, for a key federal law to be drastically different depending upon which state you’re in, and doubly weird in this case since the Fourth Circuit covers Maryland and Virginia, the two states that surround Washington. Geographically, D.C. is now a “no subsidies” island in the middle of a “subsidies” sea. That’s odd, and that’s why the Supreme will probably take the case. It’s also why the White House insists on an en banc rehearing on Halbig in the D.C. Circuit. If the full court overrules today’s decision, it would eliminate the circuit split and reduce a bit of pressure on the Supremes to take this case. But then, it takes just four votes of the Court to grant cert and agree to hear a case from a circuit court, which means that even if all five justices who votes to uphold the mandate two years ago would rather pass on this one, Scalia, Thomas, Alito, and Kennedy could force them to take it up by voting for cert. Will they do it? (Spoiler: Yes.)

Update: I didn’t see it until after I scheduled this post, but DrewM made the same points about the circuit split and granting cert here.


TOPICS: Breaking News; Constitution/Conservatism; Culture/Society; Government; US: Virginia
KEYWORDS: blog; bloggers; courts; democratcare; fourthcircuit; obamacare; subsidies

1 posted on 07/22/2014 11:15:41 AM PDT by SeekAndFind
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To: SeekAndFind

Fed Appeals trumps circuit all day


2 posted on 07/22/2014 11:18:28 AM PDT by traderrob6
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To: SeekAndFind

“…a literal reading of the statute undoubtedly accords more closely with their [the plaintif’s] position.”

Gosh. Who ever interprets the words in a law or contract “literally”? /s

They really think we are that stupid. Sadly, enough of us are. Those three judges have no respect for the meaning of words or the rule of law. Why should I?

These judges are insulting our intelligence.


3 posted on 07/22/2014 11:20:14 AM PDT by cuban leaf (The US will not survive the obama presidency. The world may not either.)
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To: SeekAndFind

“You have to pass the bill to have no idea what it means.”


4 posted on 07/22/2014 11:20:50 AM PDT by DannyTN (I)
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To: SeekAndFind
Whenever two federal appellate courts rule differently on the same issue, it’s almost a cinch that the Supreme Court will end up taking the case to resolve the ambiguity.

But won't SCOTUS wait until the matter has been finally decided in the DC Circuit?

5 posted on 07/22/2014 11:21:23 AM PDT by KevinB (Barack Obama: Our first black, gay, Kenyan, Muslim president!)
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To: SeekAndFind
the most noteworthy thing about the opinion is how tormented the court seems in trying to determine what Congress intended

I don't agree that the judicial torment has to do with the meaning of a clearly worded clause in the law.

The torment arises over how far to compromise ones honesty, dignity and self respect when bending over backwards to protect the incompetent and feckless airhead we have as president.


6 posted on 07/22/2014 11:35:52 AM PDT by Iron Munro (The Obamas Black skin has morphed into Teflon thanks to the Obama Media)
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To: traderrob6

The Court of Appeals for the Fourth Judicial Circuit stands on the same level as The Court of Appeals for the District of Columbia Circuit. One does not trump the other. The three levels of the Federal Judiciary are: District Courts, Courts of Appeals (one for each Judicial Circuit, and The Supreme Court.


7 posted on 07/22/2014 11:36:26 AM PDT by centurion316
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To: centurion316

It is just a new expensive welfare scheme


8 posted on 07/22/2014 11:37:08 AM PDT by GeronL (Vote for Conservatives not for Republicans)
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To: SeekAndFind

bttt


9 posted on 07/22/2014 11:38:20 AM PDT by sphinx
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To: SeekAndFind

Yet another assault on America by Judicial Activists.


10 posted on 07/22/2014 11:58:36 AM PDT by Oliviaforever
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To: cuban leaf
Gosh. Who ever interprets the words in a law or contract “literally”? /s

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean — neither more nor less."
"The question is,' said Alice, 'whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master — that's all."

11 posted on 07/22/2014 12:24:48 PM PDT by PlasticMan
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To: SeekAndFind

In other words, party affiliation and activism is what these clown “judges” use to make their decisions. Our “judicial” system is the biggest circus to ever come down the pike.


12 posted on 07/22/2014 12:31:50 PM PDT by FlingWingFlyer (America is not a refugee camp! It is my home!!!)
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To: KevinB
But won't SCOTUS wait until the matter has been finally decided in the DC Circuit?

The court could deny an appeal and make both the 4th and the DC Circuit go en banc, but it's probably unlikely. I'd bet on a stay of the DC Circuit's decision and an accepted appeal by SCOTUS. Then we'll see if the Obots still have the blackmail photos of Chief Justice Roberts.

13 posted on 07/22/2014 12:39:26 PM PDT by NYRepublican72
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To: SeekAndFind

There was a time when courts refused to try to read stuff into poorly drafted legislation and would just uphold the letter of the law and advise the legislature that if they actually intended something different than what was written, that they amend the law accordingly.

These courts know that there is no way even a word of this law is going to get “amended” without a complete overhaul, they are forcing interprtations that will rescue the law rather than leaving it up to congress to fix it.

This is a dishonest opinion.


14 posted on 07/22/2014 12:47:22 PM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds)
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To: NYRepublican72

So basically as I read and understand this everything gets kicked back to the IRS for them to make good decisions on wording interpretation.


15 posted on 07/22/2014 12:52:41 PM PDT by My Favorite Headache (In a world where I feel so small, I can't stop thinking big.)
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To: My Favorite Headache
everything gets kicked back to the IRS for them to make good decisions

What could possibly go wrong?

16 posted on 07/22/2014 12:53:44 PM PDT by tacticalogic
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To: SeekAndFind
...the most noteworthy thing about the opinion is how tormented the court seems in trying to determine what Congress intended when it said that subsidies should be available only on “an exchange established by the State.”

This reminds me of how "tormented" Bill Clinton was when he asked if being "alone" with Monica Lewinksy meant "alone in the Oval Office," or "alone in the larger West Wing?"

Someone is sure to argue that when Congress meant "established by the state," they didn't mean the sovereign states in the Constitution, they meant the larger "federal state of the union."

-PJ

17 posted on 07/22/2014 12:56:34 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: PlasticMan

“Would you tell me, please, which way I ought to go from here?”
“That depends a good deal on where you want to get to,” said the Cat.”I don’t much care where –” said Alice.”Then it doesn’t matter which way you go,” said the Cat.”– so long as I get somewhere,” Alice added as an explanation.”Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.”


18 posted on 07/22/2014 1:17:07 PM PDT by 1010RD (First, Do No Harm)
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To: SeekAndFind

https://www.youtube.com/watch?v=GtnEmPXEpr0

saw this on a comment from another board.. worth a watch.

“Jonathan Gruber, ACA architect, on video, at the 31:30 minute mark, stating for the public to know that without a State exchange, there are no subsidies”


19 posted on 07/22/2014 1:20:28 PM PDT by freespirit2012
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To: Political Junkie Too

Who’d have thought that unclear pronouns could be the downfall of Obamacare?


20 posted on 07/22/2014 1:27:59 PM PDT by Personal Responsibility (I'd use the /S tag but is it really necessary?)
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To: SeekAndFind

Aside from the Supremes, whose decision carries more weight, the Fourth Circuit, or the Appellate?


21 posted on 07/22/2014 1:41:49 PM PDT by Focault's Pendulum (I live in NJ....' Nuff said!)
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To: freespirit2012

My understanding is this was a feature not a bug to incentivize states to set up the exchanges. In other words, it was intentional.


22 posted on 07/22/2014 1:45:12 PM PDT by Menehune56 ("Let them hate so long as they fear" (Oderint Dum Metuant), Lucius Accius (170 BC - 86 BC))
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To: SeekAndFind
Oh! BTW!

Help me celebrate my Birthday

It's My Birthday!!!

23 posted on 07/22/2014 1:47:40 PM PDT by Focault's Pendulum (I live in NJ....' Nuff said!)
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To: NYRepublican72; KevinB

“The court could deny an appeal and make both the 4th and the DC Circuit go en banc, but it’s probably unlikely. I’d bet on a stay of the DC Circuit’s decision and an accepted appeal by SCOTUS. Then we’ll see if the Obots still have the blackmail photos of Chief Justice Roberts.”

Excuse my ignorance of how this works, but doesn’t the DC case have to go to the 11 justices now, rather than straight to the SC?

If all the bought and paid for liberal judges don’t want this to hang over the Nov election, they’ll likely fasttrack it to the SC. JMO. The illegal invasion plus the outcome of Obamacare subsidies could cause problems for the liberals that caused both of these things in November.


24 posted on 07/22/2014 1:53:03 PM PDT by yorkiemom ( "...if fascism ever comes to America, it will come in the name of liberalism." - Ronald Reagan)
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To: SeekAndFind

There’s no “news” today, no “devastating blow” to ObamaCare. The 3 judge D.C. panel is meaningless, as is the 4th Circuit. Obama stacked the full D.C. circuit expressly to uphold ObamaCare, and they will do exactly that. This was the ONLY reason Harry Reid did away with the filibuster - in order to pack the D.C.court before the GOP took the Senate. Today’s news is meaningless, sorry to say.


25 posted on 07/22/2014 1:56:00 PM PDT by montag813
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To: Menehune56
This article from the American Spectator from July 9, 2012, shows that they knew all along that the federal government was barred from subsidizing federal exchanges.

The language was clear to all back then. I would be very surprised if the language became suddenly, unexpectedly, unclear today.

Also, from what I've been reading, when SCOTUS upheld Obamacare, they also ruled 7-2 that the federal government violated the 10th amendment when they tried to force the states to run their own exchanges via withholding medicare funding. This allowed the states to reject establishing their own exchanges. This is where it all started.

SCOTUS ruled 7-2 that states can opt to not run subsidized exchanges. Is SCOTUS going to now rule that because of their prior rule, the federal government can NOW get subsidies, since it failed to be the incentive that Congress expected it to be?

Has any other law been so unlawfully regarded?

-PJ

26 posted on 07/22/2014 2:01:16 PM PDT by Political Junkie Too (If you are the Posterity of We the People, then you are a Natural Born Citizen.)
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To: Focault's Pendulum

Neither. Split in circuits both are controlling in their area. Most likely with that, unless both cases get appealed to the full Appeals Courts first (en banc — all the justices), the SCOTUS will sort it out.

SCOTUS may require en banc decisions first or just take the case to resolve the conflict.


27 posted on 07/22/2014 2:15:40 PM PDT by NYRepublican72
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To: yorkiemom
Excuse my ignorance of how this works, but doesn’t the DC case have to go to the 11 justices now, rather than straight to the SC?

Though I'm a lawyer I'm not an expert in appellate procedure. I would think that an unappealable conflict would have to exist in two or more circuits before SCOTUS will hear it. If en banc review is still available a conflict has not been finally established. I'm interested in hearing what Mark Levin has to say about this tonight since he's an expert on this sort of thing.

28 posted on 07/22/2014 2:17:53 PM PDT by KevinB (Barack Obama: Our first black, gay, Kenyan, Muslim president!)
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To: yorkiemom

It may. It may not. En banc is one way of handling it (all the appellate justices of both the 4th and DC Circuts).

Or the parties could try to see if the SCOTUS is willing to take it now. They may. They may not.


29 posted on 07/22/2014 2:18:13 PM PDT by NYRepublican72
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To: Menehune56

You are correct sir!
Sort of almost smells like a conspiracy!
I have called the Obama gang The perfect crime administration,this is a perfect example,they control all the power levers,media,executive,judicial,law enforcement,you can’t beat them.
They prey on the ignorance of the American public,these judges twisting themselves into pretzels to defend this Obamanation.
We are a nation of parties not laws


30 posted on 07/22/2014 2:22:52 PM PDT by ballplayer
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To: Menehune56

Yes.. that is right, as can be seen in the Jonathan Gruber video, it was intentional to create an incentive for the states to set up exchanges. The problem is for Obama, the states did not take the incentive. So, they are attempting to change the plain meaning of the words.


31 posted on 07/22/2014 2:25:57 PM PDT by freespirit2012
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To: NYRepublican72
En banc is one way of handling it (all the appellate justices of both the 4th and DC Circuts).

I'm not sure you can mix the districts.

32 posted on 07/22/2014 2:29:33 PM PDT by Focault's Pendulum (I live in NJ....' Nuff said!)
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To: P-Marlowe
These courts know that there is no way even a word of this law is going to get “amended” without a complete overhaul, they are forcing interprtations that will rescue the law rather than leaving it up to congress to fix it.

This is a dishonest opinion.

Put another way; this is a decision in favor of the government and against the people.

33 posted on 07/22/2014 2:31:35 PM PDT by okie01 (The Mainstream Media: Ignorance on parade.)
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To: traderrob6; centurion316; SeekAndFind

However, the DC circuit is given special consideration.

That aside, I think it will turn on who was to provide the subsidy for the state exchanges. If it was supposed to be a state contribution to ObamaCare, then some states would get the same benefit with zero cost. That sounds good to those states, but it isn’t equal treatment of all the states. If New York has to put out money and Texas doesn’t, but they both get the same benefit, then there is a problem.

John Roberts will choose that the Fed pays all subsidies in order to save ObamaCare.

If the Fed is already paying the state exchange subsidies, then I think they have a good case for saying they intended the Fed to pay all subsidies anyway. John Roberts will endorse that.

Either way, this will get saved by John Roberts.


34 posted on 07/22/2014 2:33:08 PM PDT by xzins ( Retired Army Chaplain and Proud of It! Those who truly support our troops pray for victory!)
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To: Focault's Pendulum
I'm not sure you can mix the districts.

Sorry, I was unclear. Both cases were heard by just three justices in the DC and 4th Circuit. Appeals would be to each district en banc and then the Supreme Court. Of course, one of the parties could file a writ for direct appeal to the SCOTUS at this point due to a split in the districts. SCOTUS can always turn down.

35 posted on 07/22/2014 3:02:04 PM PDT by NYRepublican72
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To: SeekAndFind

Looks like the two courts coordinated a split in order to punt to SC.


36 posted on 07/22/2014 3:21:47 PM PDT by Raycpa
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To: KevinB

I won’t be able to listen (going to a friend’s for dinner).

Can you let me know what he says?


37 posted on 07/22/2014 4:42:36 PM PDT by yorkiemom ( "...if fascism ever comes to America, it will come in the name of liberalism." - Ronald Reagan)
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To: ballplayer

did bozo not say before he was elected that the problem with the civil rights movement was that they did not concentrate too much on the courts?


38 posted on 07/22/2014 5:22:46 PM PDT by manc (Marriage =1 man + 1 woman,when they say marriage equality then they should support polygamy)
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To: SeekAndFind

What a crock. Congress should be held accountable for writing their own laws.


39 posted on 07/22/2014 6:13:59 PM PDT by magellan
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To: Focault's Pendulum
I believe the confusion on the DC findings was that it came from a three judge panel, and not the full circuit. I believe the Regime will appeal for a full hearing by the DC circuit, where they believe the original decision will be reversed. Either way, the real intent of the ACA was creating chaos to usher in universal, state controlled health care.
40 posted on 07/22/2014 8:30:22 PM PDT by buckalfa (Long time caller --- first time listener.)
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To: P-Marlowe

Well said.


41 posted on 07/22/2014 9:21:36 PM PDT by First_Salute (May God save our democratic-republican government, from a government by judiciary.)
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To: NYRepublican72

“Then we’ll see if the Obots still have the blackmail photos of Chief Justice Roberts.”

******

Since it’s vogue to be a homo these days, I’m guessing it isn’t blackmail photos of his bathhouse romps. Probably has more to do with the murky adoption background (illegal?) for his two kids.


42 posted on 07/23/2014 1:14:16 AM PDT by peyton randolph (Show me the man and I will find the crime. - Lavrenti Beria)
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To: buckalfa

The regime intends to appeal en banc.

If I were the good guys, I’d appeal the 4th Circuit ruling directly to SCOTUS and hope they take the case, rendering the en banc hearing moot. The fix will be in in the DC Circuit with Obamabots on the court > Republican appointees.


43 posted on 07/23/2014 10:35:16 AM PDT by NYRepublican72
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To: Political Junkie Too; All

This will also have implications for Virginia, where the former R governor did one thing and the current D governor is trying to change it.


44 posted on 07/23/2014 10:53:06 PM PDT by gleeaikin
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