Separation of powers is at stake

Separation of powers is at stake

By:  LeRoy Goldman

Two three-judge panels from the U.S. Court of Appeals in Washington and the 4th Circuit Court of Appeals in Richmond, Va., issued contradictory rulings Tuesday on a crucial portion of the Affordable Care Act.

At issue in Halbig v. Burwell, the Washington case, and King v. Burwell, the Richmond case, is whether the Obama administration may legally provide subsidies in the form of tax credits to people who have signed up for coverage under Obamacare in the 36 states that opted not to create state-run exchanges but rather rely on federally established exchanges.

The panel in Washington struck down the subsidies. The panel in Richmond upheld them. If the subsidies are stricken, Obamacare will be severely wounded.

When appellate courts issue contradictory rulings, the dispute is often settled by the U.S. Supreme Court. The Obama administration hopes to avoid having to defend the constitutionality of the president’s signature piece of legislation yet again before the justices. Thus, it will ask the full D.C. Court of Appeals to review and hopefully reverse the decision of its three-judge panel.

The ploy may work. The full court has four new members, all nominated by President Barack Obama.

If that happens, the Supreme Court could choose to duck the issue. It shouldn’t because these two cases raise issues that go far beyond the constitutionality of the subsidies in question. The broader and far more important legal principle these cases present concerns the integrity of the doctrine of separation of powers. And that’s why these cases need to be decided by the Supreme Court.

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But prior to addressing separation of powers, let’s be clear about the dispute respecting subsidies. It all comes down to a few words in the ACA.

Writing for the majority in the D.C. Circuit Court, Judge Thomas Griffith stated that Section 36B of the Internal Revenue Code, enacted as a part of the ACA, makes tax credits available as a form of subsidy to individuals who purchase health insurance through exchanges that are “established by a state under Section 1311 of the Act.” Thus the majority held that the ACA unambiguously restricts the Section 36B subsidies to insurance purchased on exchanges established by the state, not by the federal government.

Not so, says the Obama administration. It argues that a reading of the entire ACA makes clear that subsidies are to be available in all exchanges. In addition, those supporting the federal government’s position have argued that the language of Section 36B and Section 1311 is a drafting error. This argument is preposterous.

I should know. I served as the staff director of the Senate Health Subcommittee during the 1970s. I was intimately involved in the passage of many Senate bills. I know the process firsthand. The drafting is done by the Office of the Senate Legislative Counsel. Its staff is one of the most unique, professional and competent legislative offices I have ever encountered.

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Those in the Office of the Senate Legislative Counsel know the body of law for which they are responsible in intimate detail. They never infuse their own personal or policy views into the drafting of legislation. They systematically point out issues that need to be addressed and resolved between existing law and the language of any new bill such as the ACA.

It’s inconceivable that the language of sections 36B and 1311 and its meaning in the context of existing law and the rest of the ACA were not vetted by the Legislative Counsel, relevant Senate legislative committee staff and the Obama administration.

The obvious explanation for the language in sections 36B and 1311 was the expectation by the Senate Democrats and the administration that the subsidies would entice all states to establish exchanges. They were wrong.

And now the Obama administration is trying to dig itself out of a hole of its own making by arguing that sections 36B and 1311 don’t mean what they clearly say.

The administration’s position strikes at the heart of the doctrine of separation of powers. It proposes to establish the chilling precedent that the executive branch is no longer obligated to implement laws passed by Congress. Rather, it is free to alter them as it wishes.

That is a precedent that should be opposed by all who respect the rule of law, regardless of their political persuasion.

These cases present an issue of grave constitutional consequence that goes far beyond the subsidies. The remedy is the exercise of judicial review by the Supreme Court. The way to uphold the integrity of separation of powers is to uphold the integrity of separation of powers. A 9-0 vote is the best resolution, but 5-4 will suffice.

LeRoy Goldman is a former Times-News columnist. He can be reached at:  EmailMe.

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