On the same day that the D.C. Circuit struck down the subsidies in federal exchanges, the 4th Circuit Court of Appeals issued an opinion saying the law is vague and therefore the administration can do what it wants. The split decision practically guarantees the case will go to the Supreme Court. Todd Gaziano of the Pacific Legal Center advises, “The Supreme Court will wait to see if either losing party seeks en banc review, and what the result of that review is before it acts on a petition for certiorari. Yet even the initial panel conflict increases the odds of the high court granting cert in one case. It is almost certain to grant certiorari if the United States seeks it from the DC Circuit panel decision or if there remains a split in the circuits after the time for en banc review expires.”
Randy Barnett, who pushed the constitutional case against Obamacare, is quite convinced the D.C. Circuit has it right. He tells Right Turn, “If you follow the text, the meaning of the enacted statute is clear, and the law’s defenders know it.” As he points out, in the D.C. circuit, “Democrats are now pinning their hopes on Democratic-appointed judges to rule en banc to disregard the law in favor of a judicially constructed ‘intent.’ ” (The 4th Circuit panel consisted of two Obama appointees and a Clinton appointee who was held over and resubmitted by the Bush administration as a “courtesy.”)
This 4th Circuit opinion upholding Obamacare does not alleviate the political problem for Democrats. The question still is: Who would “fix” the law to affirm that exchanges stay in (if the court rules against the administration), and who would vote to take them out (if Obamacare’s subsidies in federal exchanges are upheld)? In the states, most gubernatorial and state legislative candidates will also be asked, if they are in states with a federal exchange: Will you set up a state exchange if the subsidies in the federal ones are struck down? Democrats will need to fess up and be held accountable by the voters.
Republicans should not repeat the error in the original Obamacare litigation, namely putting all their eggs in a legislative basket. The courts, as we saw today, will work their will and will give the administration due (or more than due) deference. In order to really repeal and replace Obamacare, the GOP will need to win the Senate and the White House.
And to be sure, every which way you turn in upcoming elections the issue becomes a thumbs up or down on Obamacare. Liberals who hoped the 2014 and 2016 elections would not be a referendum on Obamacare should reassess. And Republicans should force their opponents in 2014 and 2016 to defend the unpopular law. To do that they must be prepared to offer an alternative that doesn’t rely on thousands of pages of a statute, the meaning of which is still uncertain more than four years after it was passed.