THE WALL STREET JOURNAL EDITORIALIZES: Why Democrats Packed the Court: The new liberal D.C. Circuit intervenes in a big ObamaCare case.
Exactly as President Obama and Senate Democrats planned, the full D.C. Circuit Court of Appeals has moved to suppress a major challenge to ObamaCare. The gambit is no less remarkable for its nakedness.
Last week the full D.C. Circuit vacated the July decision that some insurance subsidies violate the law’s plain language and agreed to rehear Halbig v. Burwell en banc. ObamaCare’s text authorizes subsidies only through exchanges “established by the State,” so a three-judge panel ruled that the Internal Revenue Service was dispensing them illegally across the 36 exchanges established by the federal government.
Such straightforward statutory interpretation fails the D.C. Circuit’s own high standards for en banc scrutiny. As Washington attorney Adam White recently explained in these pages, since the 1990s the full D.C. Circuit has chosen to rehear merely one or two—and sometimes zero—of the 500 or so cases heard every year. The court’s standard for en banc hearings has been that a panel has overturned a D.C. Circuit precedent, which Halbig does not, or if a matter of “exceptional importance” is implicated, historically meaning some constitutional principle. Reading a statute does not rise to constitutional review.
The difference now is that Harry Reid last year packed the D.C. Circuit with three of President Obama’s nominees, so liberals now outnumber conservatives by eight to five not counting senior judges. The Senate Majority Leader nuked the filibuster rule for judges, allowing them to be confirmed with 51 instead of 60 votes, precisely so the court would become the garbageman to dispose of unpleasant legal challenges to the President’s regulatory decrees. ObamaCare is Exhibit A.//
When the Republicans had control of the Senate, we heard changing the rule described as the "nuclear option," and the press was aghast that such a sacred tradition would be overturned.
When the Democrats had control, they got rid of the rule and not a whisper was heard from the press.
When Republicans again get the Senate, their mission should be to make the Democrats regret their decision and to not give n just because the press starts up again.