Halbig's Critics Miss the Mark

In Halbig v. Burwell, the federal appellate court for the District of Columbia (“D.C.  Circuit”) interpreted a clause in the Affordable Care Act (“ObamaCare”) to mean exactly what it would mean to the average reader. The provision authorizes subsidies to certain individuals purchasing health insurance through “an Exchange established by the State.” The court concluded that this meant that individuals purchasing health insurance through an exchange established by a state may receive subsidies. The court rejected the government’s argument that, based on context, the word “State” must refer to either a State or the federal government. 

Not satisfied merely to disagree with the court’s opinion, some critics describe the court’s act of commonsense interpretation as “shamefully dishonest,” “legally laughable,” and “judicial sophistry.” The point here is not to defend the merits of the Halbig decision, but to point out that, no matter what one thinks about the outcome of the case, the critics’ overheated rhetoric is inappropriate and unjustifiable. 

Six appellate judges have reviewed this provision, two judges found that the language unambiguously favors the plaintiffs’ interpretation restricting subsidies to State Exchanges, three judges found that the text of the statute is open to various interpretations, and only one judge found that the text demanded the government’s interpretation. This strongly contradicts the media’s insistence that the D.C. Circuit’s interpretation was egregious and self-evidently wrong.

Judge Thomas Griffith wrote the majority opinion in Halbig. This is significant. Following the oral arguments in this case, Judge Griffith was seen as the swing vote, open to persuasion by either side. Judge Griffith has never previously stood out as a right-wing ideologue. Even liberals have generally regarded him as relatively moderate. If Judge Griffith had written an opinion utilizing identical reasoning regarding less controversial subject matter, it would likely have reinforced, rather than obliterated, his reputation as a moderate. He noted that he reached his conclusion “with reluctance.”  He felt compelled to do so because, by “ascertain[ing] the meaning of the words of the statute” rather than substituting what he thinks Congress may have meant, he affirmed the court’s “limited role” and ensured “policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

Perhaps Judge Griffith’s claims are merely subterfuge, and his prior moderation was an elaborate ploy. Perhaps he was merely waiting for the right moment, a case as important as Halbig, to expose his true colors. It is hard to imagine why a judge, granted immediate lifetime tenure, would maintain such a charade after his appointment. But for the sake of argument, maybe he did. If that is the case, the other judges who wrote opinions on the matter would have surely exposed his dishonesty by effortlessly showing that the statute means exactly what the government, and the media, claim it means. But as we will see, that is not what happened.

The Fourth Circuit, a federal appellate court based in Virginia, accepted the government’s reading of this provision within hours of the D.C. Circuit rejecting it. If Halbig’s most vehement critics were right, one would have expected the Fourth Circuit to have resoundingly adopted the government’s interpretation. Let’s take a look at what the Fourth Circuit actually stated. 

The court noted that a “literal reading of the statute undoubtedly accords more closely with [the plaintiffs’] position.” Fine, skeptics might argue, but when the court considered the language in context, it must have found that the defendants had a much stronger case. Actually, no. “The court is of the opinion that the defendants have the stronger position, although only slightly.” Well, a critic would respond, the Fourth Circuit obviously must have found that the government represented Congress’s intent, and the plaintiffs’ arguments were frivolous. Once again, this is simply not true. The court “decline[d] to accept the defendant’s arguments as dispositive of Congress’s intent.” The court went through each of the parties’ arguments and counterarguments, and, in each instance, concluded that both parties presented strong arguments, making it difficult to choose between the two sides.

What about the judge who dissented in Halbig? The dissenting judge must have agreed with the critics that the text unambiguously supported the government, right? Wrong. He did nothing of the sort.

When a court reviews an agency’s interpretation of a statute, it does so in two stages. First, the court reviews whether the statute is ambiguous. If, and only if, a court determines that a statute is ambiguous will it move on to the second step in the analysis. During the second stage, the court generally defers to any reasonable agency interpretation. Neither the Fourth Circuit majority nor Judge Edwards, despite ruling for the government at the second stage, found that the D.C. Circuit misinterpreted an unambiguous statute. Judge Edwards, in fact, found that the provision in question “has no plain meaning.” None of this seems to support the critics’ shrill arguments.

Vocal critics of the D.C. Circuit’s Halbig opinion have attempted to paint it as an act of gross judicial activism in which the judges brazenly substituted their political agenda for Congress’s clear intent. That narrative does not reflect reality and should never have been perpetuated. Cracks are forming that are too obvious and embarrassing for even the most ardent partisan to ignore. Tapes have come to light showing that Jonathan Gruber “acknowledged by everyone, as an architect of the ACA,” had publicly promoted the plaintiffs’ understanding of the law in early 2012. These revelations must be quite embarrassing for the critics who were so confident in their position that they felt the need to shout it in the loudest and most bombastic way possible. Perhaps if the media has been in less of a rush to inappropriately condemn this holding they would not look so foolish today.

I acknowledge that judicial activism exists, and fully support condemning such misbehavior where the evidence suggests that it has occurred. But that is not the situation in the majority of cases. It is certainly not the situation here. It will impoverish our public discourse if we cannot discuss the legal merits of politically significant and contentious court cases without vitriol. Hopefully liberals in the media will have many more opportunities to attempt to properly react to adverse legal rulings. 

In Halbig v. Burwell, the federal appellate court for the District of Columbia (“D.C.  Circuit”) interpreted a clause in the Affordable Care Act (“ObamaCare”) to mean exactly what it would mean to the average reader. The provision authorizes subsidies to certain individuals purchasing health insurance through “an Exchange established by the State.” The court concluded that this meant that individuals purchasing health insurance through an exchange established by a state may receive subsidies. The court rejected the government’s argument that, based on context, the word “State” must refer to either a State or the federal government. 

Not satisfied merely to disagree with the court’s opinion, some critics describe the court’s act of commonsense interpretation as “shamefully dishonest,” “legally laughable,” and “judicial sophistry.” The point here is not to defend the merits of the Halbig decision, but to point out that, no matter what one thinks about the outcome of the case, the critics’ overheated rhetoric is inappropriate and unjustifiable. 

Six appellate judges have reviewed this provision, two judges found that the language unambiguously favors the plaintiffs’ interpretation restricting subsidies to State Exchanges, three judges found that the text of the statute is open to various interpretations, and only one judge found that the text demanded the government’s interpretation. This strongly contradicts the media’s insistence that the D.C. Circuit’s interpretation was egregious and self-evidently wrong.

Judge Thomas Griffith wrote the majority opinion in Halbig. This is significant. Following the oral arguments in this case, Judge Griffith was seen as the swing vote, open to persuasion by either side. Judge Griffith has never previously stood out as a right-wing ideologue. Even liberals have generally regarded him as relatively moderate. If Judge Griffith had written an opinion utilizing identical reasoning regarding less controversial subject matter, it would likely have reinforced, rather than obliterated, his reputation as a moderate. He noted that he reached his conclusion “with reluctance.”  He felt compelled to do so because, by “ascertain[ing] the meaning of the words of the statute” rather than substituting what he thinks Congress may have meant, he affirmed the court’s “limited role” and ensured “policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

Perhaps Judge Griffith’s claims are merely subterfuge, and his prior moderation was an elaborate ploy. Perhaps he was merely waiting for the right moment, a case as important as Halbig, to expose his true colors. It is hard to imagine why a judge, granted immediate lifetime tenure, would maintain such a charade after his appointment. But for the sake of argument, maybe he did. If that is the case, the other judges who wrote opinions on the matter would have surely exposed his dishonesty by effortlessly showing that the statute means exactly what the government, and the media, claim it means. But as we will see, that is not what happened.

The Fourth Circuit, a federal appellate court based in Virginia, accepted the government’s reading of this provision within hours of the D.C. Circuit rejecting it. If Halbig’s most vehement critics were right, one would have expected the Fourth Circuit to have resoundingly adopted the government’s interpretation. Let’s take a look at what the Fourth Circuit actually stated. 

The court noted that a “literal reading of the statute undoubtedly accords more closely with [the plaintiffs’] position.” Fine, skeptics might argue, but when the court considered the language in context, it must have found that the defendants had a much stronger case. Actually, no. “The court is of the opinion that the defendants have the stronger position, although only slightly.” Well, a critic would respond, the Fourth Circuit obviously must have found that the government represented Congress’s intent, and the plaintiffs’ arguments were frivolous. Once again, this is simply not true. The court “decline[d] to accept the defendant’s arguments as dispositive of Congress’s intent.” The court went through each of the parties’ arguments and counterarguments, and, in each instance, concluded that both parties presented strong arguments, making it difficult to choose between the two sides.

What about the judge who dissented in Halbig? The dissenting judge must have agreed with the critics that the text unambiguously supported the government, right? Wrong. He did nothing of the sort.

When a court reviews an agency’s interpretation of a statute, it does so in two stages. First, the court reviews whether the statute is ambiguous. If, and only if, a court determines that a statute is ambiguous will it move on to the second step in the analysis. During the second stage, the court generally defers to any reasonable agency interpretation. Neither the Fourth Circuit majority nor Judge Edwards, despite ruling for the government at the second stage, found that the D.C. Circuit misinterpreted an unambiguous statute. Judge Edwards, in fact, found that the provision in question “has no plain meaning.” None of this seems to support the critics’ shrill arguments.

Vocal critics of the D.C. Circuit’s Halbig opinion have attempted to paint it as an act of gross judicial activism in which the judges brazenly substituted their political agenda for Congress’s clear intent. That narrative does not reflect reality and should never have been perpetuated. Cracks are forming that are too obvious and embarrassing for even the most ardent partisan to ignore. Tapes have come to light showing that Jonathan Gruber “acknowledged by everyone, as an architect of the ACA,” had publicly promoted the plaintiffs’ understanding of the law in early 2012. These revelations must be quite embarrassing for the critics who were so confident in their position that they felt the need to shout it in the loudest and most bombastic way possible. Perhaps if the media has been in less of a rush to inappropriately condemn this holding they would not look so foolish today.

I acknowledge that judicial activism exists, and fully support condemning such misbehavior where the evidence suggests that it has occurred. But that is not the situation in the majority of cases. It is certainly not the situation here. It will impoverish our public discourse if we cannot discuss the legal merits of politically significant and contentious court cases without vitriol. Hopefully liberals in the media will have many more opportunities to attempt to properly react to adverse legal rulings.