D.C. Circuit Panel Majority Duped By Opponents Of ACA

Washington, DC – In a startlingly unsound opinion issued this morning, two judges on a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that the tax credits that make health insurance affordable for millions of Americans under the Affordable Care Act should not be available in the 36 states with exchanges run by the federal government. 


Constitutional Accountability Center, which wrote the brief on behalf of Senate Majority Leader Harry Reid, House Democratic Leader Nancy Pelosi, and every major committee chair involved in writing the ACA, as well as state officials from across America, documented that this result is wholly inconsistent with the purpose and structure of the Act. As dissenting Judge Harry Edwards wrote in response to a key part of the majority’s ruling:


This claim is nonsense, made up out of whole cloth. 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. 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.


Elizabeth Wydra, Chief Counsel of Constitutional Accountability Center, said, “No one – not the people who wrote the law in Congress, not those who implemented the law in the states – understood this law to work the way that two judges of the D.C. Circuit today said it does.”


Doug Kendall, President of Constitutional Accountability Center, added, “This decision represents ideological judging at its worst, misreading the text, structure, and purpose of the ACA, and the very dire consequences that will accompany this ruling if not reversed by higher courts. The en banc D.C. Circuit should vacate this disturbing decision as soon as possible.”






*  CAC “friend of the court” brief in Halbig v. Burwell (formerly Halbig v. Sebelius) on behalf of Senate Majority Leader Reid, House Democratic Leader Pelosi, committee chairs in office when the ACA was passed, plus state officials in office when the ACA was being debated: http://theusconstitution.org/sites/default/files/briefs/Halbig-Amicus-Legislator-CAC.pdf 


*  “’Kick Millions Off Health Insurance’ To Save Four People . . . Nothing?” Simon Lazarus, May 28, 2014: http://theusconstitution.org/text-history/2689/%E2%80%9Ckick-millions-health-insurance%E2%80%9D-save-four-people-nothing 




Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.