Nel's New Day

November 7, 2014

Obamacare, Marriage Equality at Risk

The voters—or lack of them—have done their damage to the federal legislative branch, and the Supreme Court has decided to see what disaster they can wreak. Today, at least four justices decided to take on a review of King v. Burwell, a case similar to Halbig v. Burwell. Because of sloppy drafting, the ACA law was left with contradictory statements after two chambers agreed on the changes. One provision limits subsidies to “an exchange established by the state,” but the law allows the federal government to run exchanges in states that do not have them. If the Supreme Court were to rule in the former terminology, at least 5 million people would see the cost of their insurance to skyrocket above what they could afford, disenfranchising them in the same way that people lost the right to vote in the most recent election.

ACA states that when a state doesn’t set up its own marketplace, the federal government “shall establish and operate such exchange.” The IRS issued a regulation allowing subsidies whether the exchange is run by a state or by the federal government. A few months ago, however, a conservative three-judge panel from the D.C. Circuit ruled in Halbig that the Obama Administration had rewritten the law and that Congress never intended to allow subsidies to people on a federal exchange.


On the same day, the 4th Circuit Court ruled in King in favor of a federal exchange. Judge Roger Gregory ruled that the law is ambiguous and therefore “applying deference to the IRS’s determination . . . we uphold the rule as a permissible exercise of the agency’s discretion. His precedent is a 1984 Supreme Court ruling in favor of Chevron giving agencies great deference in interpretations of laws. More recently, the Court ruled in Arlington v. FCC that agencies could define their own jurisdiction.


The D.C. Circuit decision is not final: Halbig is on en banc review with all the judges in that specific appeals court with argument set for December. Reversing the original ruling would leave no split in the circuit courts, yet the Supreme Court decided to take on the case before a lower-court ruling was made.


As Brian Beutler wrote in the New Republic, the four justices taking the case have changed a court into a death panel for people in 36 states. Their potential to void health care subsidies in three dozen states would cripple the insurance market and kill people who couldn’t afford insurance. Placing the onus on red states for health care would be worse than the current situation in which these states refuse to allow the federal government to provide Medicaid for most of the poor residents.


Many articles about the problem, particularly ones from conservative writers, broadly quote Jonathan Adler, a law professor at Case Western Reserve University, as an expert who opposes ACA. Adler, who has tie-ins with the Heartland and Cato Institutes, is making a name for himself with the inconsistencies he discovered in the drafting of ACA. Case Western Reserve law school is ranked 64th in the nation.


The Supreme Court is also likely to address the issue of marriage equality after the 6th Circuit Court determined that Kentucky, Michigan, Ohio, and Tennessee can continue to ban same-sex marriage. The court waited three months after arguments to release its opinion. Earlier this year, Justice Ruth Bader Ginsburg had said that the high court would probably not hear any marriage equality cases unless a split on decisions from the circuit courts creates “some urgency” to resolve a circuit split. Now the 6th Circuit has done exactly that.


The panel striking down same-sex marriage included Judge Jeffrey Sutton, a former law clerk to Scalia and a George W. Bush appointee. Adler described another judge on the panel, Deborah Cook, as “not likely to recognize a constitutional right that the Supreme Court has not yet recognized.” In arguments Sutton called any problems caused by banning gays and lesbians from being married—such as not being able to get drivers’ licenses or adopt children—as an “inconvenience.” Only senior Judge Martha Craig Daughtrey seemed supportive of constitutional rights for LGBT people who cannot be legally married in the state where they live.


The panel ruled that same-sex couples can neither be married in its jurisdiction nor be considered married if they wed in a state where marriage equality is legal. It used the Supreme Court’s ruling upholding a state ban on same-sex marriage in the 42-year-old case, Baker v. Nelson (1972) and rejected any reasoning in other federal court rulings that struck down state bans. Sutton claimed that the rational foundations are to regulate sex between men and women to establish stable family relationships. Neither judge could find any hostility toward gays and lesbians in denying them the same marriage rights as heterosexuals have. The solution to marriage equality, according to Sutton’s opinion, is for gay rights advocates to achieve “greater acceptance” so that people will legalize it.


In his analysis of Sutton’s ruling, Mark Joseph Stern wrote:


“Instead of analyzing the 14th Amendment’s dual guarantees of liberty and equal protection, he simply states that gay people have no business fighting for their civil rights in court. After a while, Sutton’s repeated insistence that it’s not a federal judge’s duty to enforce the constitution makes you want to grab him by the shoulders and ask, then what in the world were you hired for?”


Stern described Daughtrey’s dissension as “a scorching, bitterly funny, profoundly humane excoriation of Sutton’s sophistry.” In her opening, she writes:


“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal. … Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for ‘proceeding with caution’ (otherwise known as the ‘wait and see’ approach), I dissent.”


She continues by objection to Sutton’s opinion because he fails to view “the plaintiffs as persons” and instead perceives them as “mere abstractions” with no concern for the plaintiffs’ children. According to Daughtrey, the children of gays and lesbians are punished by the parents’ inferior status thrust on them by law from an irrational animus simply because they are gays and lesbians. Such a situation violates the equal-protection clause of the U.S. Constitution.


In conclusion, she wrote:


“More than 20 years ago, when I took my oath of office … I solemnly swore to ‘administer justice without respect to persons,’ to ‘do equal right to the poor and to the rich,’ and to ‘faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States.’ If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”


Even the conservative Washington Post found Sutton’s arguments to be “weak” and worse.


Rights for same-sex couples did advance in two states this week. On Tuesday, the 10th U.S. Circuit Court of Appeals denied a request from the Kansas attorney general to stop same-sex marriages because doing so violated the equal-protection clause of the U.S. Constitution.  Kansas is appealing to the Supreme Court through Justice Sonia Sotomayor. In Missouri, U.S. District Judge Ortrie Smith struck down that state’s marriage ban but delayed his ruling pending appeals to either the 8th Circuit Court or the Supreme Court.

Smith wrote:


“There is no hardship in requiring that public officials adhere to the Constitution, and the public interest is always served when the Constitution is obeyed.”


Despite the delay, same-sex couples began getting licenses and married in St. Louis.


Before the Supreme Court decided Windsor v. United States, it was estimated that about 130,000 same-sex couples were married in the United States in a little over half the number of states that now have legalized marriage equality. That number must have doubled or tripled by now although no one is keeping statistics. If the Supreme Court rules that the people can decide to take away this right, many of these marriages could be dissolved because most of the 34 states recognizing same-sex marriage have done so through judicial or legislative action. These people will join the 7 million disenfranchised voters and the 5 million people losing health insurance. Such is the power of the “high court.”



  1. I often feel as if those of us lucky enough to live in our “bright blue state” (thanks, Nel) live in a parallel universe. Thank the goddess and the fairies and whomever else for for keeping Justice Ginsberg alive and alert and on the Court.


    Comment by Monica — November 8, 2014 @ 10:12 AM | Reply

  2. Thanks again for the sad truth.


    Comment by Lee Lynch — November 8, 2014 @ 12:51 AM | Reply

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