By Linda Greenhouse

The Affordable Care Act — Obamacare — has endured so many near-death experiences that digging into the details of still another effort to demolish it is admittedly not an inviting prospect. (My own reaction, I confess, to hearing some months back about the latest legal challenge — this one aimed at the supposed effect of a single word in the 900-page statute — was something along the lines of “wake me when it’s over.”)

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

To be clear, I’m not suggesting that there is anything wrong with turning to the courts to achieve what politics won’t deliver; we all know that litigation is politics by other means. (Think school desegregation. Think reproductive rights. Think, perhaps, same-sex marriage.) Nor is the creativity and determination of the Affordable Care Act’s opponents any great revelation — not after they came within a hairsbreadth of getting the law’s individual mandate thrown out on a constitutional theory that would have been laughed out of court not too many years ago.

Boy, are they ever determined. Flash back to December 2010, when the Commerce Clause challenges to the new law were beginning to fill the legal pipeline en route to the Supreme Court. At a conference held at the American Enterprise Institute, a conservative research organization in Washington, Michael S. Greve, an A.E.I. scholar and chairman of the Competitive Enterprise Institute, had this to say in reference to the Affordable Care Act:

“This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.” Mr. Greve went on to urge a litigating strategy that looked beyond the mandate to “concentrate on bits and pieces of this law.”

And that’s exactly what his Competitive Enterprise Institute proceeded to do. It is financing a set of lawsuits with a seemingly modest ambition: seeking not a constitutional ruling but a mere statutory interpretation. The suits put forward an interpretation of the statutory language that would deny tax credits to people who buy insurance on the exchanges set up by the federal government in the 36 states that have refused to establish their own exchanges. If the Supreme Court buys that statutory argument, a core goal of the Affordable Care Act — facilitating the purchase of insurance by people of modest income — would be undermined to the point of collapse. Modest indeed.

(The video from the American Enterprise Institute conference has been making its way around the internet; Mr. Greve’s comments are just past the one hour, 30 minute mark. I first saw it on the website of the Constitutional Accountability Center, a progressive Washington-based think tank and legal shop.)

It was at the American Enterprise Institute conference that the statutory argument first came to light, in a Power Point presentation by a lawyer from Greenville, S.C., Thomas M. Christina, who specializes in employee benefits. He said he had essentially stumbled on the reference in Section 36B of the act that refers to the availability of tax credits to offset the cost of insurance plans “enrolled in through an exchange established by the state.” His conclusion was that the tax credits — the federal subsidy that makes the system work — were not available in what he called the “non-capitulating states,” those that refused to set up exchanges and, as another section of the law permitted them to do, left the job to the federal Department of Health and Human Services.

I know and like Michael Greve, who is now a law professor at George Mason University; the rhetorical excess he exhibited at that conference is part of his charm. And of course, the motivations of those who “cobbled the cases together,” in Mr. Greve’s description in a recent blog post, say nothing about the merits of their argument. Nonetheless, as origin stories go, this makes for a good one.

As to the merits, six federal appellate judges have evaluated the statutory argument, and four have rejected it. One judge, Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit, called the case “specious,” a “not-so-veiled attempt to gut” the law in defiance of “the will of Congress.”

The problem is that Judge Edwards’s totally persuasive opinion was written in dissent. The majority opinion, concluding that the Internal Revenue Service is without statutory authority to issue tax credits for insurance purchased on the federally established exchanges where more than five million people have bought their health insurance, was written by Judge Thomas B. Griffith and joined by Judge A. Raymond Randolph.

Judge Griffith is a thoughtful judge who spent five years as the Senate’s legal counsel; sadly, whatever he learned in that job about the legislative process was not on display in this opinion, Halbig v. Burwell. (Of course there are ambiguities and inconsistencies in a 900-page bill that never went to a conference committee for a final stitching together of its many provisions.) Judge Randolph is one of the most outspoken and agenda-driven conservatives on the entire federal bench. In a speech to the far-right Heritage Foundation in 2010, for example, he denounced the Supreme Court for having granted habeas corpus rights to the Guantánamo detainees and compared the justices to Tom and Daisy Buchanan in “The Great Gatsby,” “careless people who smashed things up” and “let other people clean up the mess they made.”

He then proceeded in a series of opinions on the appeals court to shrink the detainees’ habeas right to the vanishing point that it eventually reached.

The decision joined by the two judges trained a laser focus on a single section, indeed on a single word, in the massive statute: the reference to “an exchange established by the state.” The opinion not only ignored the broader context, in which Congress clearly intended to make insurance affordable so that as many healthy people as possible would join an economically viable pool, but also rejected the government’s argument that language in other sections of the law supported the view that Congress didn’t mean to treat the state and federal exchanges differently.

Section 1321(c) provides that if a state fails to establish an exchange, the secretary of Health and Human Services shall “establish and operate such Exchange within the state and the Secretary shall take such actions as are necessary to implement such other requirements.” The words “such Exchange,” the government argues, mean that the federal government stands in the state’s shoes when it complies with this instruction; for these purposes, the federal government is the state.

That interpretation “makes sense,” all three members of a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluded in King v. Burwell, a decision that, by an amazing coincidence of timing, was issued the same day, July 22, as the contrary D.C. Circuit opinion. Those three judges, Roger L. Gregory, Stephanie D. Thacker and Andre M. Davis, examined the statute as a whole, in light of its purpose, and at the end of the day found the federal-state issue to be ambiguous. That’s all they needed to find for the government to win the case.

The Supreme Court has a clear rule on what courts should do about agency regulations adopted in the face of statutory ambiguity: as long as the agency’s action is based on a permissible interpretation of the statute, courts must defer to the agency. The situation is so common that the 30-year-old decision establishing the deference rule, Chevron v. Natural Resources Defense Council is one of the most frequently cited of all Supreme Court decisions.

 To avoid the Chevron rule, the D.C. Circuit majority had to find that the statute was clear in ruling out tax credits on the federal exchanges. The majority even shed a few crocodile tears: “We reach this conclusion, frankly, with reluctance.” The conclusion is simply wrong.

In fact, one judge on the Fourth Circuit panel, Andre M. Davis, wrote a separate concurring opinion to say that the statute was completely clear in the other direction. The plaintiffs’ argument, he said, was based on “a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.”

With the two contrary decisions having come down on the same day, the judicial politics surrounding the fate of the Affordable Care Act immediately got rich. The Obama administration quickly announced its intention to seek rehearing by the entire 11-member D.C. Circuit; it filed its rehearing petition on August 1. Michael A. Carvin, the lawyer for the law’s opponents (he argued the two cases) might have made the same request to the Fourth Circuit. But he did the opposite: he appealed to the Supreme Court, taking only two weeks to file his petition instead of the allotted 90 days. The race was on.

What, exactly, is the race? Clearly, the law’s opponents have their best chance — indeed, probably their only chance — in the Supreme Court. They not only lost in the Fourth Circuit, but they are likely to lose in the D.C. Circuit as well if that court, its membership recently bolstered by four Obama appointees, grants rehearing. And conversely, the administration has a clearer path to victory before the entire appeals court than it does in the Supreme Court. So the opponents’ challenge is to persuade the justices to take the case as quickly as possible. And the best way to do that is to keep the D.C. Circuit panel’s opinion on the books.

Why? Because the one reliable marker of a case the justices deem worthy of their attention is a conflict in the federal circuits on an important legal issue. But a decision by the D.C. Circuit’s judges to grant rehearing automatically wipes the panel opinion off the books, even before the rehearing itself takes place. With the panel opinion vacated, there would be no conflict — only a single ruling, a government win in the Fourth Circuit, not (if neutral principles govern, as of course they may not) a particularly attractive case for Supreme Court review.

So the opponents’ effort is trained on persuading the D.C. Circuit not to grant rehearing or — if that effort fails — to delegitimize a grant of rehearing in the eyes of friendly Supreme Court justices. The conservative blogosphere has been buzzing with messages to the appeals court, bank shots intended to be read by the justices, or at least their law clerks. Carrie Severino, a former clerk to Justice Clarence Thomas who blogs for National Review, wrote earlier this month that “clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.” Would the new judges be “willing to take the fall for the president in this case,” she wondered: “Now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act. It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself.”

The Volokh Conspiracy blog on The Washington Post carried a somewhat more politely worded imprecation to the D.C. Circuit by Jonathan H. Adler, a law professor at Case Western Reserve University and an architect of the statutory strategy. So did the Wall Street Journal’s op ed page. All these and others appeared within a day of one another. It’s safe to say that never has so much (virtual) ink been spilled in public over the question of whether a federal appeals court should grant a rehearing petition. And for this politically driven crowd to claim the moral high ground in pre-emptively accusing others of playing politics borders on fantasy.

As I said at the beginning of this column, it would be funny if it wasn’t so serious.