Looks like we're headed back to the Supreme Court. Or maybe just nowhere fast.
In a textbook case of Beltway schizophrenia, two different U.S. appeals courts rendered two dramatically differing decisions over one of the most critical funding components of the Patient Protection and Affordable Care Act.
The D.C. court struck down the Internal Revenue Service's reading of the legislation, barring the agency from allowing poorer customers on the federal exchange from federal subsidies. The majority, a pair of Bush appointees, took the law at face value.
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"The problem confronting the [PPACA] is that subsidies also turn on a third attribute of Exchanges: who established them," read the majority opinion. "Under section 36B, subsidies are available only for plans 'enrolled in through an Exchange established by the State under section 1311 of the PPACA.'"
Technically speaking, this is true. According to how PPACA is written, federal subsidies are only available for enrollees in the state exchanges. Period. Was it a typo, as some on the left declared, wringing their hands? And does it matter?
It did to another set of judges. Down I-95 a bit, a panel of Obama appointees in Richmond, Va., ruled unanimously the other way, upholding the federal subsides across the board. Or, to be more precise, they ruled the IRS has the discretion – and authority – to make that call.
"We uphold the rule as a permissible exercise of the agency's discretion," the majority opinion declared.
The court didn't rule on the specificity of 36B or the ambiguity of the law as a whole, instead circumventing the issue of the legislature's intent (and bad use of language) and focusing only on the authority of the executing agency. Kind of a copout, honestly, and I have to admit a part of me dies every time the IRS gets a little more power.
For today, nothing's changed. Everything's on hold until the full District Appeals Court meets. But in the longer term, you might as well add partisanship and uncertainty to the "death and taxes" list of the only sure bets in life.
Both sets of stuffy robes probably got this wrong, but it's sad that the courts – our last vestige of uncertain political drama – have become as partisanly predicable as everyone else in the Beltway. I know I'm probably over-romanticizing how non-partisan judges used to be, but they as least appeared to be above the fray. That illusion's as dead as a college education, retirement and the Tooth Fairy.
Blame whoever actually wrote this monstrosity that makes about as much sense as the last Michael Bay film (with about as many screenwriters). No matter what they meant, this thing is a syntactical, legal mess.
My idol, Ernest Hemingway, wrote a letter back in 1934 to his friend, F. Scott Fitzgerald.
"I write one page of masterpiece to ninety-one pages of shit," he wrote. "I try to put the shit in the wastebasket."
In Congress, they put those 91 pages in the law. And the rest of us are stuck smelling it.
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