Republican-appointed judges on the D.C. Circuit today took a step towards gutting the Affordable Care Act, ruling that consumers that receive coverage through the federal exchange marketplace are ineligible for subsidies. If the ruling stands, the effects on “Obamacare” could be catastrophic, which is why it matters that the ruling may not stand.

While we wait for the appeals process to continue – the status quo of the ACA will remain in place as the case continues – the politics of today’s developments are worth appreciating.

When the right supports tax hikes

Conservatives are absolutely delighted today for reasons that are rather twisted – for the right, it’s terrific news that millions of families, many of them in red states, are poised to lose tax breaks. After all, by contemporary Republican rules, if Americans are receiving a tax subsidy, and policymakers try to take that subsidy away, that effectively constitutes a tax increase.

So let’s pause to note the oddity of the circumstances: Republicans nationwide are thrilled by the prospect of millions of working-class families facing a tax hike that may push basic medical care out of reach.

Judicial activism

Too often, “judicial activism” is little more than a lazy criticism – a euphemism of sorts that means “court ruling I don’t like.” But when a couple of Republican-appointed jurists, who sounded like Fox News pundits during oral arguments, decide to gut the American health care system based on their interpretation of a drafting error, “judicial activism” seems like the only fair assessment.

The D.C. Circuit duo ignored the context of the statute, ignored Congress’ intent, ignored the administration’s position, and ignored the findings of lower courts. Since conservatives generally claim to find such activism offensive, I’ll be eager to see how many on the right concede today’s decision was ridiculous.

An elusive moral center

The right is cheering the prospect of soaring premiums, families facing financial hardship, and more Americans lacking access to basic medical care, all because of the ambiguity of a possible drafting error. If your values guide you towards celebrating others’ hardship – if your character tells you to rejoice at the misfortune of working families – it’s probably time for a long look in the mirror.

The “nuclear option” is looking awfully smart right now

On the D.C. Circuit, judges appointed by Democratic presidents now outnumber judges by Republicans presidents, which gives hope to ACA supporters on appeal. Were it not for the Senate Democrats’ decision to execute the so-called “nuclear option,” this advantage would not exist. If today’s ruling is overturned, President Obama will owe Senate Republicans a thank-you note – were it not for their unprecedented obstructionism, Dems probably wouldn’t have decided to go “nuclear” at all.

When inconsistency meets incoherence

Republican National Committee Chair Reince Priebus said the D.C. Circuit ruling is a reminder that “Obamacare is not working for too many Americans.” This is the talking point of someone who assumes Americans are fools. The ACA has been working extremely well, but this is a lawsuit intended to sabotage the American system. To argue that the law is ineffective because a court ruling might render it ineffective is simply too dumb to be taken seriously.

Logic 101





Honesty is such a lonely word



Perhaps it’s time to call today’s ruling what it is: dishonest. Brian Beutler’s analysis rings true: the case “ was and remains a fundamentally dishonest solicitation of right-wing judicial activism.” Adam Serwer raised a very good point about the D.C. Circuit’s reasoning: “In effect, they were arguing not only that Democrats who voted for the law deliberately wrote it as to make it as easy as possible for Republicans to dismantle it, but that Democrats believed the best way to motivate Republican-controlled states to set up exchanges was to harm the very people the law was designed to help.” Such an assumption is crazy, of course, but that was the basis for today’s ruling.

A majority on the three-judge panel essentially held that phrases read out of context in a section of the ACA statute “unambiguously” prohibit the IRS from subsidizing insurance plans in states that didn’t set up their own exchanges. That’s what the originators of the suit wanted them to do. But it required those judges to ignore no less a conservative than Supreme Court Justice Antonin Scalia, who last month described the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” From that view, I’d argue that the statute is unambiguous…. What the challengers have asked judges to do is to ignore the “fundamental canon” and buy into the idea that the Democrats who passed the law unambiguously structured it to withhold premium subsidies from states that refused to set up their own exchanges, as some sort of high-stakes inducement. This is plainly false. It’s the giant whopper underlying the entire theory of Halbig . A completely fabricated history of the Affordable Care Act, which treats the scores of reporters who covered the drafting of the law as idiots, and the aides and members who actually drafted it as bigger idiots and liars as well.