WASHINGTON – In rapid succession, six federal judges on two appeals courts weighed in on a key component of President Barack Obama's health care law. Their votes lined up precisely with the party of the president who appointed them.
It was the latest illustration that presidents help shape their legacies by stocking the federal bench with judges whose views are more likely to align with their own.
The legal drama played out Tuesday in Washington, D.C., and Richmond, Virginia, on two appeals courts that Obama has transformed through 10 appointments in 5½ years.
In the first ruling, a divided three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia called into question the subsidies that help millions of low- and middle-income people afford their health care premiums, saying financial aid can be provided only in states that have set up their own insurance markets, or exchanges. Two judges nominated by Republican presidents formed the majority over a dissent from a Democratic appointee.
Less than two hours later, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond made up entirely of Democratic appointees unanimously came to the opposite conclusion, ruling that the Internal Revenue Service correctly interpreted the will of Congress when it issued regulations allowing health insurance tax credits for consumers in all 50 states.
Whatever the final outcome of the legal fight, White House spokesman Josh Earnest said nothing would change in the near term. Millions of consumers will keep getting financial aid for their premiums, totaling billions of dollars, as the administration appeals the Washington court ruling, Earnest said.
The next stop for the administration is to ask the full court in Washington to hear the case. This is where Obama's appointments could come into play. The president has named four of the 11 full-time judges on the court, turning what had been a Republican edge into a 7-4 advantage for Democratic appointees.
In Richmond, Obama has named six judges since taking office in 2009, with another nomination pending to a court formerly among the nation's most conservative. It is unlikely that the businesses challenging the IRS regulations will take their case to the full 4th Circuit.
It's no accident when judges tend to vote with the interests of the political party of the president who named them, said law professor Richard Hasen of the University of California at Irvine. "Judges are not chosen at random," he said, noting that both parties put a lot of effort into identifying lawyers for life-tenured judgeships who are likely to reflect their interests.
Looking at the prospect at review of Tuesday's ruling by the full court in Washington, "Democrats are much more relaxed than they otherwise might be," Hasen said.
Tuesday's decisions are part of a long-running political and legal campaign to overturn Obama's signature domestic legislation by Republicans and other opponents of the law.
The two judges who accepted the challengers' argument are Thomas Griffith and Raymond Randolph, named by Presidents George W. Bush and George H.W. Bush, respectively.
Of the four judges who sided with the administration, Andre Davis and Stephanie Thacker were appointed by Obama, Roger Gregory was originally put on the bench by President Bill Clinton and Harry Edwards was a nominee of President Jimmy Carter.
The provision of the health law at issue "unambiguously" restricts subsides to consumers in exchanges established by states, Griffith wrote for the Washington court, joined by Randolph. Looking at the same language and legal arguments, "we find that the applicable statutory language is ambiguous and subject to multiple interpretations," Gregory wrote for the Richmond panel.
Whether this issue ever gets in front of the Supreme Court could rest on the outcome of the administration's appeal to the full Washington court. A loss for the administration would present the court with conflicting appellate rulings, which often catch the justices' attention, especially when a federal law or regulation is at stake.
If the Supreme Court gets involved in the subsidies issue, a decision probably would not come before late June of next year and could push into the court's next term.
As with the lower courts that ruled Tuesday, party affiliation and ideology also align on the Supreme Court. Republican presidents appointed the court's five more conservative justices and Democrats appointed the four liberals.
The high court's consideration of earlier challenges to the health care law shows the sharp split but also demonstrates that a judge's party affiliation is no guarantee of a particular outcome in any case.
In June, the court ruled 5-4, with its conservative justices in the majority, that some private companies don't have to cover birth control if it offends religious scruples.
But in its monumental ruling in 2012, Chief Justice John Roberts broke with his fellow conservatives to cast the decisive vote to uphold the law's core requirement that most Americans carry health insurance or face fines.
Excerpts from conflicting health law rulings
Two federal appeals courts issued conflicting rulings Tuesday in a dispute involving crucial financing for President Barack Obama’s health care law.
A three-judge panel of the appeals court in Washington said the plain language of the law states that financial aid to help people pay insurance premiums can be provided only in states that have set up their own insurance exchanges.
But a similar panel of the 4th Circuit in Richmond, Virginia, said the language of the law is confusing and that the Internal Revenue Service reasonably interpreted the will of Congress when it said that tax credits can also be provided in states where the federal government is running the markets.
The Washington case is Halbig v. Burwell, and the Richmond case is King vs. Burwell. Some excerpts from both decisions:
–Judge Thomas Griffith, U.S. Court of Appeals for the District of Columbia Circuit:
“Because we conclude that the (Affordable Care Act) unambiguously restricts the (tax credit) subsidy to insurance purchased on exchanges `established by the state,’ we reverse the district court and vacate the IRS’ regulation.
“We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still.”
–Judge Roger Gregory, 4th U.S. Circuit Court of Appeals, Richmond:
Congress determined that “denying tax credits to individuals shopping on federal exchanges would throw a debilitating wrench into the act’s internal economic machinery,” and therefore the court deferred to an IRS interpretation that furthers the overall goals of the legislation.
“We find that the applicable statutory language is ambiguous and subject to multiple interpretations. Applying deference to the IRS’ determination, however, we uphold the rule as a permissible exercise of the agency’s discretion.”
–Judge Andre Davis, 4th Circuit, concurring:
“If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino’s, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino’s with a ham and pepperoni pizza has still complied with a literal construction of my lunch order. That is this case: Congress specified that exchanges should be established and run by the states, but the contingency provision permits federal officials to act in place of the state when it fails to establish an exchange.”