Last June, the Supreme Court handed down its decision in King v. Burwell, shutting down the latest attack on the Affordable Care Act to reach the justices in the process. Yet while the law’s supporters — and the thousands of Americans who could die if Obamacare is repealed — celebrated this decision, another threat to the law waited in a powerful appeals court.
On Friday, however, four Republican federal appeals court judges, including at least one of the most conservative judges in the country, laid that threat to rest in an opinion signaling that federal courts will no longer give comfort to lawyers seeking to wipe out Obamacare.
More than a year ago, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Sissel v. Department of Health and Human Services. Matt Sissel and his attorneys claimed that a key provision of the Affordable Care Act must be struck down because of an alleged procedural error committed by Congress while the law was debated and passed. The three-judge panel rejected this claim, but Sissel’s attorneys responded by asking the full DC Circuit to reconsider the case. That petition, seeking full court review, languished for months without an answer from the court’s judges.
Typically, when a petition asking a full federal appeals court to hear a case — in what is known as “en banc” review — sits for months without a response from the court, it’s because a minority of the court’s active judges disagree with the three-judge panel’s decision and are drafting a dissenting opinion laying out their objections.
Because the DC Circuit has 7 active members who were appointed by Democrats and only 4 Republicans among its active judges, it was never likely that the full court would side with the plaintiff in Sissel (who, for reasons explained below, presented weak legal arguments to the court). Nevertheless, an opinion by the court’s Republicans embracing Sissel’s arguments would grant legitimacy to this lawsuit in the same way that a previous decision by two Republican judges on the DC Circuit gave legitimacy to the legal arguments in King. Advocates supporting Obamacare risked spending another year of their lives defending against yet another existential threat to the Affordable Care Act in the United States Supreme Court.
On Friday, however, the DC Circuit handed down its long-awaited response to Sissel’s request for en banc review, and the court’s two opinions responding to that request wound up producing far more smoke than fire. The bottom line is that every single DC Circuit judge to weigh in on the Sissel litigation, including all four of the court’s active Republican members, agree that Mr. Sissel should lose his case.
Sissel challenges the Affordable Care Act under a provision of the Constitution known as the Origination Clause, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” In practice, this clause creates a procedural roadblock that Congress frequently avoids through the Senate’s broad amendment power. Though a “Bill for raising Revenue” must begin in the House, the Senate has the power to amend such a bill with an amendment that completely rewrites its text. Thus, to avoid violating the Origination Clause, the Senate will take a bill that already passed the House, amend it to replace that bill with its own preferred language, and then pass the amended bill and send it back to the House.
This is a common practice that the Senate has used for many years. In 1986, for example, the Senate used this process to enact tax reforms that were signed into law by President Ronald Reagan. The same process was also used to enact the Affordable Care Act.
Sissel, however, claimed that this process could not be used to enact Obamacare, in part because original House bill that the Senate amended “had nothing to do with health insurance reform.” Yet, as Judge Brett Kavanaugh explained in an opinion joined by the DC Circuit’s three other Republican members, this claim has no basis in the text of the Constitution. “The Origination Clause,” Kavanaugh explains, “imposes no germaneness requirement on the Senate when it amends revenue-raising bills that originated in the House.”
Kavanaugh summarizes the fatal flaw in Sissel’s argument in just a few sentences:
The Origination Clause permits the Senate to “propose or concur with Amendments as on other Bills.” The text of the Origination Clause therefore grants the Senate as much authority to amend revenue bills as it grants the Senate to amend other bills. There is no general germaneness requirement when the Senate amends other House bills. It follows that there is no germaneness requirement when the Senate amends revenue bills. “As on other Bills” means “As on other Bills.”
The reason why it took months for the DC Circuit to issue a pair of opinions which ultimately agreed with each other that Sissel should lose is that the court’s judges disagreed on why he should lose, and they apparently thought that disagreement was important enough to air in dueling opinions. Judges Judith Rogers, Nina Pillard and Robert Wilkins, the members of the original three-judge panel, co-authored an opinion laying out their explanation for why Sissel should not prevail. They rely on Supreme Court precedents establishing that “that the variable controlling whether a statutory provision falls within the ambit of the Origination Clause is whether raising revenue for the general Treasury is that provision’s primary purpose,” and they argue that the provision challenged in Sissel does not fit within this test.
In the end, however, the disagreement among the court’s judges is largely academic. The Affordable Care Act is alive and Sissel is, if not entirely dead, unlikely to be taken up by the Supreme Court if every judge who has considered the arguments presented by Mr. Sissel’s attorneys agree that those arguments should be rejected.
This is an important development not just because it suggests that this lawsuit is unlikely to prevail, but because of the identity of some of the judges who decided not to pick this fight. One judge who joined Judge Kavanaugh’s opinion is Judge Thomas Griffith, the author of a divided three-judge panel’s decision in Halbig v. Burwell, which embraced the same legal arguments presented by the plaintiffs in King. These arguments were just as weak as the arguments presented by Sissel’s attorneys — King and Halbig rested on the unique legal argument that much of the text of the Affordable Care Act does not count. So Griffith’s willingness to sign onto Kavanaugh’s opinion suggests that Griffith’s tolerance for extravagant challenges to Obamacare has waned since he handed down his opinion in Halbig.
Another judge who joined Kavanaugh’s opinion was Judge Janice Rogers Brown a staunch economic libertarian who once argued that courts should treat all labor or business regulation with a great deal of constitutional skepticism. Brown labeled the New Deal a “socialist revolution,” and claimed that Social Security is a kind of intergenerational cannibalism (“Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract”). So if any judge in the country would be sympathetic to an attack on Obamacare, it is Janice Rogers Brown.
And yet, even she decided not to breathe life into Sissel.