“Two
Republican judges on the D.C. Circuit Court have ruled that the equivalent of a
typo is enough to strip health care subsidies from up to 5 million people,
dealing what would be a death blow to the Affordable Care Act if the decision
is allowed to stand. The one Democrat on the panel dissented.”
This blatantly partisan action reveals that
the judicial appointees of the last few Republican presidents cannot discharge
their duties in a manner commensurate with the dignity of their office and
ideals of equal justice under law. It may be asked why this same verdict is not
rendered upon judicial appointees of Democratic Presidents and that is a fair
question.
Using this
recent decision of a three judge panel of the D C Circuit Court as the
launching pad, there are several reasons to label many Republican appointed
judges as partisan hacks. First, Obamacare
is a colloquial term for both the Patient Protection and Affordable Care Act
(PPACA) and the Health Care and Education Reconciliation Act (HCERA). These two
laws are printed on a total of 961 pages have a total of approximately 381,517
words. The decision by the two Republican appointed judges essentially turned on a single word of two letters in length. These judges emphasized this phrase from the
law as the basis of their ruling “a federal Exchange is not an 'Exchange
established by the State.” The crucial
word is by. If that word had been in, the entire argument would have
collapsed. Therefore, in order to reach
their conclusion, these two judges had to willfully ignore everything else in
the law and the legislative history of the law. Second, every member of
Congress involved in drafting the law affirmed that this wording reflects a
typographical error. They also attested to the fact that they had no intent to
exclude federally operated exchanges from the subsidy provisions of Obamacare. Third, Carter-appointed Judge
Harry T. Edwards correctly observed, the Appellants filed the suit in a not
well veiled attempt to sabotage Obamacare. He called the majority’s
interpretation that Congress planted "a poison pill to the insurance
markets in the States that did not elect to create their own Exchanges,” is
surely is not anything Congress intended.”
In this context, it bears mentioning that all votes for the health care
reform came from Democrats. It defies rational
belief that Democrats would embed a seed of destruction into a major
legislative achievement they took all the risk to enact. Fourth, the interpretation relied on by the
Republican judges to explain their ruling is a complete fabrication by the
Appellants and it is utterly fantastic. The Appellants contended “Congress
wanted to incentivize states to create their own exchanges and withhold
financial assistance for residents of those states that didn't.” In response to this Judge Edwards wrote: "The
simple truth is that Appellants’ incentive story is a fiction, a post hoc
narrative concocted to provide a colorable explanation for the otherwise
risible notion that Congress would have wanted insurance markets to collapse in
States that elected not to create their own Exchanges." It is clear that
Judge Edwards is on point. The contention that intended states to have the
ability to destroy the law they worked so hard and risked so much to enact is
ludicrously laughable. Finally, in order to reach their decision by focusing on
the word by, the Republicans needed to ignore another word in a different
section of the law if a state does not establish an exchange “the federal
government shall establish and operate such
exchange." In this context it should be recalled, such means “of the kind specified.” In short the
law stipulates the federally established and operated exchanges are of the kind
specified as state exchanges. The reasoning of the Republican judges is
fallacious on every count.
The only
absolute requirement for judges to discharge their duties honorably is that
they be judicious. In other words, judges must act in a manner characterized
by good or discriminating judgment so that their actions seem to be wise,
sensible, or well-advised. It is not
which party they favor or how they dress during hearings and trials. The
essential qualities judges must exhibit are discernment and logical,
evidence-based adjudication. Focusing on one two-letter word out of nearly
400,000 and accepting a contention that is wholly unsupported and dubious on
its face are not actions showing discernment and logical, evidence-based adjudication.
Such actions exhibit the opposite of judiciousness. Such actions are injudicious; they are
irrational and unwise. These actions are tantamount to conduct unbecoming in
judges.
There are
huge practical consequences if this injudicious decision is allowed to stand.
The map below shows the scope of the havoc that could result.
Without
subsidies, private insurance become unaffordable for many people who have
already enrolled. Although the judicial process is still playing out, a recent
analysis from the Robert Wood Johnson Foundation indicates this decision could
affect over 7.3 million people expected to receive federal subsidies in 2016.
“If the
plaintiffs prevail and subsidies are withdrawn, healthy people would drop their
coverage, and only the people who are very sick — and therefore very expensive
to insure — would keep their plans.
This sets up
the classic insurance "death spiral". By putting coverage out of
financial reach for so many people, it would undermine the entire purpose of
the Affordable Care Act.”
In a final
bravura performance of injudiciousness, the Republicans asserted: That “after ruling to overturn the law passed
by both chambers of Congress, they did so in order to defend the principle of legislative supremacy." If it had been
debatable previously, their injudicious behavior is now revealed in its full
oligarchic, partisan splendor by their own brazen hypocrisy.
In order to
drive home the plutocratic oligarchic nature of this duos ruling consider these
statistics:
“Compared to
people living in states that set up their own exchanges, the residents of
states with federally established and operated exchanges are also more likely to report that they are unable
to see a doctor due to cost, more likely to have been diagnosed with
diabetes, more likely to be overweight, and more likely to live in communities identified as medically underserved
because of poverty and limited access to primary care. On top of all of
that, these states are home to 68% of the America’s uninsured, including 84% of all uninsured low- and
moderate-income African Americans, and 60% of such Hispanics.”
Apparently
these judges believe if you are poor, Black or Brown then don’t hang aroun’. It is supremely
difficult to get more plutocratic and oligarchic than that.
Our response
to this D C Circuit Court panel’s decision should be guided by Elie Wiesel’s
cogent observation. “There may be times when we are powerless to prevent
injustice, but there must never be a
time when we fail to protest.”
Citizens - arise!
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