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By Tom Cushing

?Much Ado? or is it Adios for ObamaCare?

Uploaded: Jul 23, 2014

My grandfather, the Accountant, had little use for law or lawyers. In his orderly view of the world (and quite apart from his dismay about the romantic attachments of one Mr. Justice Douglas), the whole legal process was inefficient: The Law was out there in immutable absolute principles. Thus, you shouldn't need a baseball team of judges to find it; one really good Justice ought to be a sufficient law giver.

The problem, of course, is that law is not science in the way that a brick dropped on your foot will never defy the Law of Gravity. Rather, it is political philosophy: thus, reasonable minds may differ as to its proper coverage and emphases in governing the affairs of people. In other words, law is human, and subject to the same philosophical influences that place us each on a political spectrum from Left to Right. And its processes are messy, as reflected in the famous 'laws and sausages' metaphor.

That's why an odd number of appellate judges > 1 is required, Gramps, and why the positioning of the fifth-vote out of nine Supremes is most important.

The Affordable Care Act/ObamaCare approach to health care is a product of the legislative schnitzel factory. It represents compromise, first crafted by the conservative Heritage Foundation in the 1990s, as an alternative to a so-called single-payor system of universal coverage popular elsewhere in the First World.

Introduced as an early stab at bi-partisanship, it immediately morph'd into the Worst Thing Ever in some circles, and passed with nary a GOP vote. It has been battered and altered by a barrage of legal challenges, bedeviled by scurrilous campaigns of disinformation, and confounded by delay and its own early mismanagement. Despite all that, enrollments are now brisk, the coverage-age distribution satisfactory and folks are paying their premiums. It is getting on with the hard work of improving health and relieving suffering.

Not that the batterings have ceased. The GOP House majority continues to shake an impotent fist (there's pharmaceutical coverage for that, I'm told) by voting to repeal the law on a roughly weekly basis when they're in session (despite having no time to reform immigration, but that's another column). And here come two lawsuits, birthed by the libertarian Cato Institute, that seek to invalidate the work of the federal government's much-maligned website: healthcare.gov.

At issue are the ACA's subsidies to insureds earning less than a threshold income. As drafted, the subsidies go to individuals who purchase their health insurance through "exchanges run by the state." Not included was a further clause "or the federal government-sponsored exchange," which is accessed by the feds' website. Some states have established their own exchanges (Covered CA, for instance), but a majority have not ? relying instead on the federal version. Indeed, more individuals have accessed coverage via the federal site than all the state sites, combined.

The lawsuits, both of which failed at trial, allege that the absence of specific federal exchange language in that single provision of a 2,000-page bill is fatal to the provision of all those federal exchange-accessed subsidies, which are the defining element of the legislation.

As you've probably read, yesterday two federal intermediate appeals courts came to simultaneous, diametrically opposed conclusions on the subject. It would shock my granddad to know that they split along the partisan divide: two GOP-appointed judges in DC overruled their trial judge (with one Dem dissent), while the all-Dem 4th Circuit panel in Richmond unanimously upheld the lower court in allowing the federal exchange subsidies. The DC Court did its work "with reluctance," which is what judges often write when they know they're out on a flimsy limb, and suspect they'll be reversed -- but they just can't help themselves.

Who has the better argument? Well, with the caveat that where you come-out has a Lot to do with where you came-in on the political spectrum, I think the ayes have it. The subsidies are the central, even defining characteristic of ObamaCare ? they are what does the most to expand the coverage it provides. To argue that the federal exchange was to be consciously excluded from their provision strains logic. There is no reference to such intent anywhere in the reams of the so-called legislative history papers that preceded the bill's passage. Reading and interpreting the bill as a whole, and in light of its evident purpose, it seems clear that there was no intent to exclude the largest exchange from the primary purpose of the Act.

The contrary arguments are that the federal exchange was left out specifically to incentivize the states to form their own exchanges, and that it's not the courts' job to repair legislation. The former would make a better case if there was anything in the history, or subsequent implementation that remotely reflects such an incentive system. Surely, those incentives would have been front-and-center in the activation process.

As to the latter argument, there are interpretive rules that point both ways, leaving the judges ample rope on which to hang a conclusion, or themselves from that philosophical limb.

Where do we go from here? Tactically, the feds have promised to seek so-called "en banc" rehearing of the case, meaning that it would be argued before All the DC Circuit judges. The Richmond plaintiffs will probably seek immediate Supreme Court review. It seems likely that the DC Circuit will vote to hear the case en banc ? a majority of them are Dem appointees, which also suggests the ultimate outcome of that review (sorry, Grandpa).

It's also likely that the Supremes will defer handling any appeal until both Circuits have finally opined. Whether one case or the other will ultimately be heard at the highest level is unclear. There are two primary reasons for them to decide the issue ? either it is socially very important to rule on the subject, or there's a conflict between/among the intermediate circuits that needs to be resolved, so that there is one rule across the land.

Here, delay favors the proponents of the law. There may not even Be a final Circuit conflict, and the more institutionally ingrained the ACA becomes, the more difficult to unscramble the egg, and the better it may be perceived to duck the issue, or defer to Congress.

My grandfather would not be pleased by this unruly state of human affairs, but at least he couldn't have blamed Justice Douglas this time.