Monday, October 20, 2014
Loading...





Extreme judicial activism on the right

We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.


Posted on July 25, 2014 at 3:33 p.m.

WASHINGTON — Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as "an impartial guardian of the rule of law."

By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.

Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way and upheld the law.

There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court's members disagree with the panel's convoluted reading of the law and that they want to avoid creating a needless conflict in jurisprudence with the 4th Circuit.

When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for states that bowed out. There are 36 states under the federal exchange.

The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.

But the law was not particularly well drafted. It's not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: "Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. ... Sausage-makers are indeed offended when their craft is linked to legislating."

Here's what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.

Poof! There goes the health law in most of the country.

Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.

In ruling to kill the subsidies for an estimated 5 million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn't set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the "incentive story is a fiction, a post hoc narrative" to justify the idea that "Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges."

The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court's 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn't exist.

Griffith has to pretend that his cramped reading of the written text — again, a reading utterly disconnected from the reality of the law's history — is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.

Edwards' logic is compelling: that the Griffith decision "defies the will of Congress" and goes along with a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act."

As the 4th Circuit's Davis put it, the law's opponents are trying "to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction" of the law.

We cannot use judicial sophistry as an instrument of anti-democratic sabotage.

E.J. Dionne's email address is ejdionne@washpost.com. Twitter: @EJDionne.

(c) 2014, Washington Post Writers Group


Recommended for You


Loading...
Loading...
Loading...
 A payday loan business in Phoenix.

Posted at 2:10 p.m.
 Democratic candidates James Lee Witt, left, and Mike Ross, right, watch former President Bill Clinton speak to the crowd during a rally at the train depot in his hometown of Hope, Ark., Saturday, Oct, 18, 2014. Clinton praised all of the democratic candidates up for election and touched on topics such as the Ebola and health care.

Posted on Oct. 19, 2014 at 4:00 p.m.
Back to top ^