"You're killing me, Erwin."
UC Irvine Law School Dean Erwin Chemerinsky, who some consider one of the greatest constitutional minds in the Land, says in this week's OC Register column that the current challenge to Obamacare must be decided in ACA's favor.
http://www.ocregister.com/articles/court-630112-exchanges-federal.html
By ERWIN CHEMERINSKY / Contributing Writer
Published: July 29, 2014 Updated: 5:45 p.m.
The decision last week by the U.S. Court of Appeals for the District of Columbia puts in serious jeopardy the ability of the Affordable Care Act to achieve its goal of providing health insurance coverage for virtually all Americans.
Interestingly, on the same day, another federal appellate court, the 4th U.S. District Court of Appeals, based in Richmond, Va., came to exactly the opposite conclusion and ruled in favor of the Obama administration. The latter court is correct, though, ultimately, the issue will be resolved by the Supreme Court.
Prior to the Affordable Care Act, 50 million people in the United States were without health insurance coverage. Although enormously controversial, the ACA is succeeding. The number of people without health insurance in California has decreased by half as a result of the Affordable Care Act.
A key mechanism of the ACA is the establishment of “exchanges,” through which individuals can purchase competitively priced health care coverage. To ensure that individuals can afford to pay for the insurance, the ACA provides a federal tax credit to millions of low- and middle-income Americans to offset the cost of policies purchased on the exchanges.
The health legislation calls for states to establish the exchanges. But if a state “elect[s]” not to do so – and only 16 states and the District of Columbia have created exchanges – the federal government creates the exchange. Section 36B of the ACA provides that tax credits will be available for those who purchase insurance on exchanges “established by the State.” Without the tax credits, millions of Americans cannot afford this insurance.
The Internal Revenue Service interpreted the statute as allowing tax credits for exchanges created by the federal government when a state government does not do so. Challengers argue that the statute allows tax credits only for exchanges created by a state government.
The federal court of appeals in Washington, D.C., in a 2-1 decision, concluded that the text of the law allows for tax credits only for state created exchanges.
The court said, “[T]he ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.’” The federal court of appeals in Richmond came to the opposite conclusion and held that Congress clearly had the purpose of allowing tax credits for those who purchased insurance on the exchanges, including ones created by the federal government.
For many reasons, the latter view is more persuasive. Time and again, the Supreme Court has held that in interpreting a statute, the law’s purpose and context should be taken into account. For example, the Supreme Court has held that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Congress’ clear purpose was to provide tax credits for those qualifying and purchasing health insurance on the exchanges.
The D.C. Circuit’s interpretation of the law makes little sense. It would mean that Congress wanted to allow states to undermine the Affordable Care Act by choosing to not create exchanges.
As Judge Harry Edwards noted in his dissent, the majority decision would interpret the 36B provision as a “poison pill” that would harm the exchanges not created by the states and this “surely is not what Congress intended.”
It ignores the overall structure of the law to say that the IRS was wrong in allowing tax credits for federally created exchanges.
Moreover, under long-standing principles, deference must be given to the federal agency, the IRS, in interpreting ambiguities in the ACA. On countless occasions, the Supreme Court has stressed the need for deference to federal agencies as to the meaning of federal laws. The IRS interprets the law to allow tax credits for those purchasing on the federal exchange.
What happens next? The federal government has announced that it will seek review of the decision of the D.C. court’s three-judge panel before all of the judges on that court.
It is expected that the full court will grant review and, given its ideological composition, reverse the panel’s ruling. The challengers have announced that they will seek Supreme Court review of the 4th Circuit’s decision, and that is likely to be granted. The case can be heard in the coming term and decided by June 2015.
What will the Supreme Court do? Everything about the Affordable Care Act is intensely political. The question will be whether the Roberts Court can overcome the partisanship surrounding the Affordable Care Act and follow basic principles of statutory interpretation. As a matter of statutory construction, Congress’ purposes and goals could not be clearer.
Erwin Chemerinsky is the dean of UC Irvine’s School of Law.
WOW! Given the latest IRS scandal, why should we give deference to the IRS on anything? Naturally, the current IRS under John Koskinen will interpret things according to the will of the administration.
Chemerinsky's legal opinion preferring the federal court opinion that favors the ACA is a glaring example of picking the opinion that matches his ideology.
6 comments:
As usual from libs, long on rhetoric, short on facts, via the use of misstatements (lies??).
As an example only, even if it is true, as far as it goes, that the uninsured population of CA has decreased by half, a significant percentage of those needed to make up that 50% comes from the previously uninsured who lost their original insurance because of ACA and then became insured again under it.
And if half of those people were in that category, that means that the uninsured ranks shrank by only 25%. More than half would, of course, mean something, perhaps a lot, less than 25% attributable to ACA.
See what I mean??
Chemerinsky's legal analysis is correct. elwood, you should study some appellate court jurisprudence before you run your mouth. It doesn't take graduating from law school, but it does take some time studying available public documents.
Chemerinsky's "legal analysis" is akin to me cheering a Cub homer.
Gary, if the Cubs hit a homer (they do now and then) wouldn't you cheer about it?
Chemerinsky devotes too much space to recounting why it would be a devastatingly bad idea to interrupt the operation of the exchange now. He's right about that, and courts do give some consideration to such criteria in crafting their orders, but its not the main point for JUDICIAL consideration.
This is a statutory interpretation case. As anyone who has read up on the subject knows, the role of a court in statutory interpretation is to give effect to the intent of the legislature. If the statute is clear and unambiguous, the court goes with the language of the statute, and stops there.
Chemerinksy, first and foremost, makes a case that the statutory language is ambiguous. Which it is. It defies reason that the legislature in question (congress) would have provided for a federal exchange, to serve those living in states that couldn't be bothered, and then would not provide for the tax credits that are the ONLY reason anyone would buy insurance through the exchange not to apply.
The ambiguity of course is that the bare language of the statute is obviously inconsistent with the equally obvious intent of the legislature. Not the intent of John Boehner, but the intent of the legislature that passed the bill.
Why don't we go with the plain language? Because the plain language also makes clear that the federal exchange is intended to do exactly what the state exchange would have done, if there is no state exchange.
When there is ambiguity, the role of the court is not to go with whichever language appeals to what Gary Fouse and elwood and John Boehner and the Tea Party would like to see happen, but to parse what the legislature that passed the law intended to happen. The courts routinely look at drafting language, floor debate, etc. to make sure they have that right.
What the intent was is rather obvious. Now if you don't want to take my word for all this, go to a legal reference site and google "give effect to the intent of the legislature."
Hmmmm. Siarlys, don't blow a gasket.
Two Federal appellate courts managed to come up with absolutely and exactly opposite opinions. Notwithstanding your comments, I am constrained to agree with the DC Circuit that the law is "unambiguous". (But wait, maybe the Dems followed Pelosi's advice to pass the law to find out what was in it, and now we know).
This would appear to demonstrate that Chemerinsky's legal analysis is not NECESSARILY accurate, but only so in your opinion (I have previously defined opinions for you).
We shall see what we shall see. In the event the full DC Circuit Court does NOT agree with the 4th Circuit, it will certainly end up at SCOTUS.
And if it does, I would not be at all surprised if Kennedy sides with the libs in a 5-4 decision, which would resolve the case in a manner much like kissing your sister.
I don't even have a gasket to blow elwood. I adapt to existing atmospheric pressure at all times.
Now we know that you have an opinion about who is correct, and no familiarity with legal language or precedent to sustain you, but you know what you like. I never doubted it.
Yes, it may go the Supremes, and no, there is no telling what they will do. Meantime, it is fair game to argue what appears in the law.
Post a Comment