Bench Memos

Frenzy on the Left

In its ruling on Tuesday in Halbig v Burwell, the D.C. Circuit ruled (in a 2-1 panel decision) that the provision of Obamacare that authorizes tax credits for insurance purchased on an exchange “established by the State under section 1311” doesn’t authorize tax credits for insurance purchased on an exchange established by the federal government. In their same-day posts, Carrie Severino and Jonathan Keim aptly presented the D.C. Circuit’s analysis.

There is a frenzy on the Left over the decision. As usual, E.J. Dionne Jr. provides a good example.

In his Washington Post column today, Dionne condemns the panel’s “convoluted reading of the law” as an act of “extreme judicial activism.” Keeping his readers in the dark, he fails to quote the actual language that the court was construing and instead obliquely states that the subsidies “are established in a part of the law referring to state exchanges.”

I don’t doubt that there is room for intelligent disagreement with the panel decision, but there is nothing “convoluted” about reading “established by the State” to mean established by the State, nor does such a straightforward reading remotely qualify as “extreme judicial activism.”

In two “Never mind that …” sentences, Dionne gives the false impression that the panel failed to address the concerns that he raises (but see slip op. at 23-30, 32-34). He also claims that the panel “invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so.” But the panel actually states that “the most that can be said of [that] theory”—which the challengers advanced; the panel did not “invent” it—“is that it is plausible.” (Slip op. at note 11.) The panel makes clear that its ruling does not embrace, and does not rest on, that possibility.

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