So far.

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Another Judge Trots Out Bad Law to Attack Obamacare

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people.

The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it.

QuickTake Obamacare, Assessed

But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party. When the Supreme Court struck down the first New Deal in 1936, it did it in essentially one swift blow -- after which Frank Delano Roosevelt retooled and passed the second New Deal.

The law that created Obamacare in 2010, in contrast, has now been subject to five major judicial attacks. This is not the way the separation of powers is supposed to operate.

You can be forgiven if you thought that legal challenges to Obamacare were over and are mystified about the current one. What you should know is that, like several of the other challenges before it, the current case arises from ingenious lawyers going over the massively long statute with a fine-toothed comb, trying to find drafting errors or other inconsistencies that would render the law unable to function.

In this instance, the target is Section 1402, which provides for reimbursement of “deductibles, coinsurance, copayments, or similar charges” for patients in the medium-priced silver-tier plans envisioned by the act. The way the provision is supposed to work is that the insurance company is ordered to take care of these copays, and then is supposed to get the money back from the government.

The congressmen who challenged the law claim that there’s no provision in the law specifically appropriating money for this reimbursement. They admit that the law provides for an indefinite, open-ended appropriation for reimbursement of insurance premiums, described in Section 1401 of the act. But they say that the absence of an express provision for 1402 means that part of the law is inoperative.

In the real world, there’s little doubt that this was an oversight by the drafters. The law was produced and passed in haste, and drafting errors are to be expected. Courts don’t normally throw out parts of laws over technical mistakes when the purpose of the provision is clear.

The federal government dealt with this problem by relying on the provision that clearly appropriates funds for premium reimbursement, reasoning with some plausibility that the two forms of reimbursement are interconnected.

A federal district judge in Washington, D.C., Rosemary Collyer, ruled that the premiums appropriation can’t be used to cover the cost of the copay reimbursement.

To get there, she had to make two mistakes. First, she made new law by ruling that the House of Representatives could sue the executive branch to claim that the president was spending money that Congress hadn’t allocated.

This part should have been easy. Congressmen don’t have standing to challenge the legality of laws, a principle the Supreme Court affirmed in 1997 when it said they didn’t have standing to challenge the line-item veto.

What’s more, a dispute between Congress and the president isn’t any business of the courts. The Constitution gives Congress the authority to make appropriations. And it gives the president the authority to execute the laws, including by spending money.

According to well-settled law, when the Constitution gives specific authority to the political branches of government, the court is supposed to stay out of the conflict. Such cases are referred to as “political questions” because they are, well, political. The Constitution contemplated that there would be struggles between the political branches of government. And it didn’t conclude that the courts should always resolve them.

Judge Collyer’s second error was treating the ACA as self-defeating. It makes no sense to interpret the law as though it established a multibillion-dollar subsidy but then didn’t allocate funds for it. The ridiculousness of reading the law this way simply underscores that this was a blatantly political act of judicial overreach.

Sadly, when it comes to Obamacare, judicial overreach has become par for the course. Judicial activism has its place, especially when it comes to discovering and protecting fundamental rights. But when it comes to interfering with duly enacted legislation, it’s gone too far.

  1. If you’re keeping score, the first major lawsuit, decided by the Supreme Court in 2012, involved the mandatory coverage provisions, which were upheld as constitutional, and the provisions that gave the states incentive to extend Medicare coverage, which were struck down as unconstitutional. These were both novel claims, but at least they weren't picayune. Then came a series of the Religious Freedom Restoration Act challenge to the ACA’s contraceptive care mandate. One, the Hobby Lobby case, was decided in 2014; the other was decided inconclusively on Monday. Finally there was a statutory challenge that tried to block the creation of state exchanges on technical grounds, which the Supreme Court rejected in 2015. This one was really scraping the bottom of the barrel, legally speaking.

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Noah Feldman at nfeldman7@bloomberg.net

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Jonathan Landman at jlandman4@bloomberg.net