24 July, 2014


“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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