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Halbig: Court Holds Clear Language of the ACA Prohibits Health Care Subsidies in Federally-Run Exchanges

Remember my post, “The Great and Powerful ACA: Are High, Inflated Premiums Hiding Behind the Curtain?” I warned of the possible consequences of Halbig v. Burwell…and it happened.

Halbig v. Burwell was decided earlier today.

The Halbig court held that the Internal Revenue Service (IRS) went too far in extending subsidies to those who buy insurance through the federally run, Healthcare.gov website.

The Halbig court ruled that the subsection of the ACA that allows high insurance premium tax credits, according to the plain language of the statute, only applies to those individuals enrolled “through an exchange established by the state.” (emphasis added). Therefore, if Halbig is upheld on en banc review by the D. C. Circuit (see below) or on appeal to the U. S. Supreme Court, residents who reside in two-thirds (or 36) of the states that did not establish state-run health care exchanges (including NC), will not benefit from the health care subsidies.

Looking at the decision through a purely objective, legal lens, I believe the federal court of appeals is correct in its ruling. I also agree that the ruling will have drastic and devastating consequences for the ACA and the people who would have benefited from the health care subsidies.

However, the law governing statutory construction and interpretation is clear. Statutory interpretation is the process by which courts interpret legislation.

For years, the U.S. Supreme Court has been explicit on statutory interpretation. “We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., 447 U.S. 102 (1980).

In other words, if the words of a statute are unambiguous, then the statutory interpretation ends. The clear words of the statute must be followed.

Let me give an example of ambiguous language:

A magazine printed the following: “Rachel Ray enjoys cooking her family and her dogs.” If that were true, Rachel Ray’s family and dogs would be very upset. I am sure what the editor meant to write was “Rachel Ray enjoys cooking, her family, and her dogs.”

It is amazing how important a comma is.

The Halbig court held that the section of the ACA allowing health care subsidies only apply to those enrolled in an exchange established by the state is not ambivalent. Thus, according to statutory interpretation rules, the judicial inquiry ends.

So what happens now?

A request for an en banc ruling by the D. C. Circuit is the next step for Department of Justice. An en banc ruling is a decision made by all the justices, or the entire bench, of an appeals court, instead of a panel selected by the bench. In this case, three federal judges sat on the panel and the case was decided 2-1. An appeals court can only overrule a decision made by one of its panels if the court is sitting en banc.

Looking beyond any en banc ruling, the case could, potentially, be heard by the U.S. Supreme Court, especially in light of the importance of the decision and the fact that a 4th Circuit Court of Appeals ruled the opposite way literally hours after Halbig was announced. See David King, et al. v. Burwell, et al.

The Fourth Circuit found the ACA ambiguous, and it states, “For reasons explained below, we find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’s determination, however, we uphold the rule as a permissible exercise of the agency’s discretion. We thus affirm the judgment of the district court.”

Bizarre that two courts hold opposing positions on the same issue and publish both decisions on the same day.  It reminds of the old Sam the Sheepdog cartoon, “Duh! Which way did he go? Which way did he go, George?”

Finally, in closing, and on a personal note, I would like to dedicate this blog to my lab-doberman mix, Booker T, who, sadly, passed Sunday.  He was my best friend for over 14 years.  You will be greatly missed, Booker T.  Rest in peace.

Booker T

Will Heated Disagreements over Medicaid Expansion Cause the Eradication of the Freedom of Speech?

Over last few months, I have noticed multiple examples of a state government attempting to silence opposing views, especially when it comes to Medicaid expansion/reform. Two of them, from Louisiana and Missouri, are discussed in this blog.  Those government efforts to silence protests raise serious concerns about the health of our freedom of speech.  Is our freedom of speech so limited now that we cannot express dissimilar views from those in government?  The First Amendment of our U.S. Constitution protects the freedom of speech.

Here are some out-of-state examples of attempts to thwart the freedom of speech:

Down in Louisiana, a group called Moveon.org, leased a billboard and advertised the following:

Louisiana

For obvious reasons, the Governor of Louisiana, Bobby Jindal, disapproved of the billboard and brought a lawsuit against Moveon.org in federal court requesting the federal judge to Order Moveon.org to remove the billboard.

The federal judge denied the lieutenant governor Jay Dardenne’s request for an injunction, and the billboard remains.

Similarly, in Kansas City, Missouri a couple dozen clergymen were arrested by Capitol police for singing “Amazing Grace” at the legislature.  The pastors were peacefully protesting that refusing to expand Medicaid was an “amazing disgrace.”  These pastors should have been protected by the freedom of speech and the freedom to assemble.

North Carolina is not immune from these attempts to silence disparate viewpoints.  During the 2013 General Assembly session 924 people were arrested during Moral Monday protests.  (The Moral Monday protests consist of people chanting and yelling their political views around and in the legislative building).  More have been arrested this year during the short session, which is now in session.  My firm has its office in the PNC building downtown Raleigh, so each Monday, I can hear the protestors walking the streets, chanting their cheers, and, subsequently, the police sirens.  I understand that many issues drive these Moral Monday protests and that Medicaid expansion/reform is one of these issues.

924 arrested people…that’s a lot of people arrested.  For each arrested person, taxpayers are paying for the person’s stint, however short, stay at the police station.  The police are devoting resources and time to peaceful protesters instead of violent criminals.

In an effort to stay some of these economic considerations and other considerations, the General Assembly had new Legislative Building rules ready before the beginning of the short session that would prohibit people from “making a noise loud enough to impair others’ ability to conduct a conversation in a normal tone of voice” and would provide for the arrest of those “creating an impediment to others’ free movement around the grounds.”

It is understandable that the legislators would like their offices quiet enough to hold conversations; I know my nerves get irritated by loud music or conversations outside my office door.  But is prohibiting the loud noise and arresting those noise culprits the right answer?  And who is to say what a “normal tone of voice” is.  For gracious sake, Bill Clinton argued about the definition of the word “is.”  “Normal tone of voice” is vaguer than the word “is.”  I know my husband would tell you that my normal tone of voice is “obnoxiously loud,” so is my tone of voice “normal?”

Recently Judge Carl Fox issued an Order stating that the new Legislative Building rules with phrases that include “disturbing behavior” and “disruptive signs,” are too vague to enforce.  Judge Fox stayed the General Assembly’s implementation of the new rules until a determination as to the constitutionality of the rules could be made.

As previously stated, North Carolina is not the only state that is attempting to limit speech and protests.  And the Republicans are not the only group attempting to silence opposing views.  Earlier this year, the federal government, vis-a-vis the IRS, announced that it would try to rewrite rules to limit how much political activity nonprofits can do and still qualify for tax-exempt status, which would limit the ability of social welfare charities to even discuss the political candidates close to an election (hence, inhibiting the freedom of speech).

But, first, why should we care whether people can protest at the legislature or comment on political views?

When I was a first year law school student, one of the core class requirements was Constitutional Law class.  The First Amendment to the U.S. Constitution reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

There are always exceptions to the general rule of you having the right to say whatever and wherever you like.  Despite these limitations, as of now, in America, we still celebrate the freedom of speech.

When evaluating whether a person has the freedom to say something, it is easy to get caught up on the content of the message.  Suppose I wrote something here inflammatory against women.  Many people would have a hard time discussing the constitutionality of my speech without focusing on the content of that statement.  However, our courts must look past the content of the statement to the constitutionality of the speech.

The Supreme Court set its standard for limiting the freedom of speech (that we use today) back in the 1960s.  The High Court overruled its previous “clear and present danger” standard and wrote:

“[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.

(emphasis added).  The above language was written by the Supreme Court in 1969 and was followed by the Cohen v. California case.  In Cohen, the Supreme Court overturned a conviction of a man who was wearing a shirt with the depiction: “Fuck the Draft!” inside a courtroom.  In one of the most eloquent decisions in history, Justice John Marshall Harlan, who wrote the majority opinion, stated that Cohen’s jacket constituted protected political speech.  He wrote that, despite the use of an expletive, “one man’s vulgarity is another man’s lyric.” The First Amendment recognizes enough breadth to permit a wide range of differing political views, even speech that exceeds traditional limitations of courtesy and polite behavior.

It is the logical assessment by Justice Harlan that we need to continue to implement today.  In order to determine whether we should limit a person’s freedom of speech, we must close our ears to the content of the speech and determine whether the speech is protected by the Constitution.  Read the Constitution.  Read Supreme Court cases regarding the freedom of speech.  The more polarized the content of the speech, the more likely we may be to immediately ban the speech without due regard for the Constitution.

Think about….what are your hot button topics? Abortion?  Fracking?  Stem cell research?  The death penalty?  Racism?  Now think about the worst possible thing that any person could say to you, which would incite your anger uncontrollably.  Say it to yourself in your head.  Then imagine yourself comparing the “hate speech” to whether “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.”  Does the imagined words incite you to lawless action?  Unless you imagined statements simply horrible, most likely, the words would cause you anger, frustration and resentment, but not cause you to conduct imminent lawless action.

My point is that we cannot confuse constitutionally protected speech with statements by people with differing political and moral views.  I remember my dad told me one time, “If there are two people with the exact same opinions, then one person is not necessary.”

Differing views shape our country.  But, recently, in the area of Medicaid, health care and Obamacare, people on both sides of the aisle are forgetting to step back and read the Constitution.  People on both sides of the aisle are stooping to name calling and attempts to restrict speech.  Our Constitution does not limit the freedom of speech to: “anything that will make everyone happy”…or “any statements that are aligned with the views of whoever is in charge.”

What if we lived in a country in which you are thrown in jail for placing a billboard touting your disagreement with the administration’s decisions or for singing “Amazing Grace” in a legislative building?

If we lived in a country in which you could be thrown in jail for speaking your mind, then we need to make immense amendments to our Constitution, and I also better start researching where to move.