Simon Lazarus pointed out, about 4 hours into the hearing, that “running to the courts to bail you out, with all due respect, is a huge leap toward radically further diminishing the Congress’s role.”
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“I don’t think that anyone would welcome a court denying same-sex couples their constitutional rights,” said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center. “If we continue with an unbroken chain of victories, then marriage equality will be legal across the country, regardless of whether the Supreme Court steps in or not.”
Elizabeth Wydra of the liberal Constitutional Accountability Center said it is too early to tell, but she hopes Ginsburg’s comments will have an effect. “Knowing there are women on the court who will challenge preconceived notions or ‘blind spots,’ I think that would create greater attention to the issues even among the conservative majority.” Wydra added, "I wouldn't say she is a lone warrior; she is the general on the field."
Though the opinion deals directly with Virginia’s laws, the reasoning could apply to other states under the 4th Circuit’s jurisdiction, “including to states with bans that, as the majority noted, are similar to Virginia’s, including South Carolina, North Carolina, and West Virginia,” said Elizabeth Wydra of the Constitutional Accountability Center.
Elizabeth Wydra of the Constitutional Accountability Center counters, "The argument frankly is made up out of whole cloth in an attempt to get rid of a law that political opponents do not like." No one, she says, "not the people who wrote the law in Congress, frankly not even the people who opposed it at the time it was enacted — no one understood the law" to forbid subsidies when the federal government, "acting in the shoes of the state," runs the exchange.
The Obama administration has said it will appeal the D.C. Circuit’s ruling to the full panel, which – thanks to Senate Democrats abolishing the filibuster – no longer has a Republican-appointed majority. But if the ruling were upheld, “It would certainly throw the Affordable Care Act, which has really started to hit its stride, into turmoil again,” said Doug Kendall, head of the liberal Constitutional Accountability Center.
Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, says the second ruling got it right, adding, "The available tax credits are essential to filling the Affordable Care Act's primary goals of assuring widespread coverage in the health care market and that Congress was fully aware of this when drafting the bill."
The D.C. Circuit's decision got basically everything wrong. It misunderstood the text, structure and purpose of the Affordable Care Act. The Justice Department has already indicated that it will ask the entire D.C. Circuit to review the Halbig v. Burwell decision, and when it does, it will no doubt reverse it.
The 2-1 ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which will be appealed by the government, threatens the framework of the health care system for about 5 million Americans without employer-provided health plans. Just two hours after that ruling, a separate federal appeals court panel in Richmond unanimously upheld the law and its system of subsidies and tax credits, putting it in opposition to the D.C. appeals court.
"There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange," said [CAC Chief Counsel Elizabeth] Wydra, who wrote a brief on behalf of members of Congress who wrote the law. "Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf."
"If the D.C. Circuit does away with the panel ruling that we saw from that court this morning, then every court will have ruled in favor of the government," Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, a liberal legal group, told reporters on a conference call.