The MSNBC freak-out continued following the surprising split rulings regarding the federal ObamaCare health insurance exchanges. The 2-1 DC circuit court decision determined that, consistent with the text in the law, subsidies must come from state insurance exchanges as opposed to federal ones. The panel was appalled that the court could possibly come to such a conclusion, while at the same time they diminished the long-term impacts of the decision.
Towards the end of the segment on the July 22 edition of The Last Word, the Washington Post’s EJ Dionne insinuated – solely based on his negative opinion of the ruling – that it was actually conservatives who are the judicial activists: “If you wonder which side of politics judicial activism is on, it ain't on the side of the liberals anymore.” [MP3 audio here; video below]
Julian Epstein, a former counsel for the House Judiciary Committee, argued that ultimately the full (en banc) appeals court will overturn this decision: “The bottom line here is, I don't think the circuits will be in conflict on this. I think the circuit courts will uphold this. And I don't think this will ever get to the Supreme Court.”
Later on in the segment, he played up the new liberal talking point that the “legitimacy” of the Supreme Court is at stake if the day comes where the high court accepts this case. He asserted, “I don't think they want this case, because it's a no-win situation for them. If they are to invalidate the law, they would do incredible harm to the court, which was a central thing that Justice Roberts was concerned about in the ACA in the main case.”
He continued by contending that there really is not much ambiguity in ObamaCare dealing with the insurance exchanges, except for the one the DC circuit court ruled on. Dionne was stunned that the conservatives would go so far to question what he labeled as nothing more than a typo: “You know, this is like Congress made a typo and somebody who really, really, really wants to get to these results says aha I caught you in a typo.”
The liberal media reaction to the ruling has been nothing short of apoplectic, despite the solid legal foundation upon which the decision was made.
The relevant portion of the transcript is below.
The Last Word
July 22, 2014
10:05 p.m. Eastern
LAWRENCE O’DONNELL, host: Joining me now are Julian Epstein, former counsel for the House judiciary committee. And former counsel for – and EJ Dionne, columnist for the Washington Post. Uh, Julian, we need the lawyers here. They found a sentence, they found one line in these 1500 pages where they can try to linchpin this decision saying that oh, yeah, clearly there was no intent here for subsidies through the federal exchanges.
JULIAN EPSTEIN: There was one provision – essentially one provision in the entire statute where the eligibility of federal exchanges for tax subsidies is implicit. There are at least six provisions elsewhere in the provision where the eligibility of federal exchanges is rather explicit. The CBO scoring contemplates that the federal exchanges will be eligible for tax subsidies. The federal calculation of an individual’s tax liability every April 15th is predicated on the idea some of them are gonna be getting tax subsidies under the federal exchanges. The entire premise of the statute, the central portion of community rating and the guaranteed provisions are all premised on the idea that everybody participates, including if you have to go through the federal system. There's a central provision that everybody learns in law school, it’s called the Chevron principle. If an agency has to got to interpret a congressional statute and there's something ambiguous or there are provisions that are conflicting, the federal agency under the Chevron principle basically can make the determination and that's what the fourth circuit said. The 11th – the DC Circuit, when it comes up for a – what’s called an en banc review, the entire circuit court, they're almost assuredly going to go the same way as the fourth circuit. The bottom line here is, I don't think the circuits will be in conflict on this. I think the courts – circuit courts will uphold this. And I don't think this will ever get to the Supreme Court.
O’DONNELL: So just procedurally, this was – the DC decision was a decision of three judges in the DC appeals court. What that means is it now goes to the full appeals court, and your prediction on the full appeals court –
EPSTEIN: It’s seven Democratic appointed judges, four Republican appointed judges. I think it's almost certain that the law will be upheld there, in which case there will not be a conflict between the fourth circuit and the DC circuit. I don’t think the Supreme Court – I think the Supreme Court will decline to take this, one because there is no conflict, two because the Supreme Court doesn't want to take this case. I don't think they want this case, because it's a no-win situation for them. If they are to invalidate the law, they would do incredible harm to the court, which was a central thing that Justice Roberts was concerned about in the ACA in the main case. I think there are years and years of decisions that Justice Scalia and Alito and others have signed their names to that basically endorse the Chevron principle, which is you defer to the agencies if there's some kind of ambiguity in the congressional statute as there is here. But I don't even think there is that much ambiguity.
EJ DIONNE: Just by the way, it doesn’t go automatically. They've got to agree to go en banc. And the DC circuit is often reluctant to overturn one of the panels. But in this case, this is so important, and I think so outrageous on its face that they will want to take it and overturn it.
DIONNE: You know, this is like Congress made a typo and somebody who really, really, really wants to get to these results says aha I caught you in a typo.
O’DONNELL: I think that’s what it is. I think that when you rush legislation like this, one of the prices you pay about legislating at midnight in a panic which is the way the Democrats did it, is there will be lines that need a few more words in them that they don't have, because it's not done by the expert committee staff with enough time.
DIONNE: Right. And so when I first heard this, I thought this is an outrage. Because judges are supposed to look at a law and look at what the congressional intent was. And nobody, nobody in this city at that point, at any moment thought that there was any doubt that the federal exchanges were put there because some states wouldn't want to establish them. But the whole wall falls apart if those people don’t get subsidies.
O’DONNELL: Every piece of testimony in every committee assumed – not just assumed this, but specified this. As you mentioned Julian, CBO analysis of the bill says this is the way it will work, which if anybody thought that was a controversial item, that would have been raised.
EPSTEIN: So there is one place in the statute again where it's implicit, it's not clear that the federal exchanges are eligible for the tax subsidies. But again, there's half a dozen other provisions where the linkage is pretty darn clear. Even if you were to accept the conservative view of this, that it's ambiguous, it's a close call, the time honored principle that justices – the conservatives on the Supreme Court have all signed their names to is that the federal agencies have the ability under the Chevron principle to make that determination. So the reason the Supreme Court doesn't take it is not just because the politics are bad for them, not just because if they take it and they were to invalidate the law, they are going to take 5 to 7 million Americans off their health insurance, they’re deny tax cuts for 5 to 7 (million) low-income Americans, they’re raise premiums for 5 to 7, some estimates say that 6 million people could lose their health insurance as a result of it. Those politics are bad. The jurisprudential politics are bad because it totally contradicts their previous positions. So they don't want to have to deal with that question versus placating the conservatives. So – I don't think the Supreme Court is going to take this case. I think this is going to be over by fall.
O’DONNELL: EJ, quickly, the last word on this.
DIONNE: If you wonder which side of politics judicial activism is on, it ain't on the side of the liberals anymore.