Whoever said cheaters never win never met a president with an unrestrained ambition to make big government bigger, and damn the Constitution. Three new judges of the U.S. Circuit Court of Appeals for the District of Columbia rode to the rescue of Obamacare on Thursday. The judges newly appointed by President Obama and confirmed by Democrats are in the new 7 to 4 majority, which reversed last month’s well-reasoned decision of a three-judge panel that said the administration can’t rewrite provisions of the Obamacare law, however inconvenient to the president, without going through the proper legislative process.
The full court will rehear the case on Dec. 17, pushing a final decision well into next year. The delay removes a split between the appellate circuits that would have placed the case squarely in the Supreme Court’s lap. A lower court can’t tell the Supreme Court what to do, of course, and the high court justices could take up the Obamacare case without waiting. But a Supreme Court review is not likely now.
President Obama can’t risk having his health care law reviewed by the high court a second time. The legislation was so poorly drafted that it’s only a matter of time before Chief Justice John Roberts runs out of imaginative reinterpretations of the text to preserve the law intact.
Obamacare was written by lawyers and administration grunions who presumed everyone would rush to embrace socialized medicine. The public would love it, and states would never turn down “free” money offered by the federal government to add more dependents to the rolls. As it turned out, 36 states, a large majority, took the sensible course of declining to set up a state-run Obamacare insurance exchange.
The law set up tax credits to subsidize policies bought from a state exchange, creating an offer “too good to refuse” for governors and statehouses. States that refused to do what the White House wanted would be “punished” by not getting the subsidy.
The administration decided to ladle out the tax credits to everyone, anyway, despite the law’s crystal-clear directive that the subsidies must go only to health insurance policies bought through a federal exchange.
Three of the judges who participated in Thursday’s vote to overlook the law and give the White House what it wanted — Patricia Millett, Nina Pillard and Robert L. Wilkins — would not be on the bench now had the president and Senate Majority Leader Harry Reid not vaporized a century of Senate tradition with the “nuclear option.” Instead of forging the consensus needed to confirm the appointments with the votes of 60 senators, they changed the rules. Mr. Obama’s court-packing prevailed.
Mr. Obama follows the example of Franklin D. Roosevelt who attempted to pack the Supreme Court with six additional justices in 1937 knowing that his New Deal expansion of the federal government couldn’t survive review by the established nine-member court. He would appoint the six new justices.
Two of the nine justices changed their votes on the court before Congress could vote on the court-packing scheme. Once the president got what he wanted, the court-packing scheme was abandoned.
Mr. Obama may not be so fortunate. If the polls accurately reflect voter sentiment of September and it holds steady in November — a big if — the Senate will switch to Republican hands in January. New rules could transform “payoff” to “payback” in future votes.