The Lawyer Who Helped Spark This Week's Affordable Care Act Rulings
Thomas Christina, South Carolina Attorney, Spotted Wording That Triggered Suits
July 24, 2014 3:53 p.m. ET
South Carolina lawyer Thomas Christina spotted wording in
the Affordable Care Act that helped trigger legal challenges.
Tami Chappell for The Wall Street Journal
Months after the Affordable Care Act
became law, employment benefits lawyer
Thomas Christina
paced in his Greenville, S.C., office with its oil portrait of a
greenhouse. He was reading the statute to learn its impact on clients.
By
his reading, the wording only allowed health insurance subsidies to be
provided through state exchanges. It began to dawn on him that he'd
stumbled on something big.
His 2010
discovery ultimately spurred a legal battle that on Tuesday resulted in
two conflicting rulings from U.S. Appeals courts regarding the
government's authority to provide consumers with subsidies on the
federal insurance exchange. The continuing legal dispute now threatens
the subsidies provided to more than four million Americans.
"It
wasn't like lightning struck," said Mr. Christina, 59, a shareholder at
the labor and employment law firm Ogletree Deakins. "It was a gradual
process. But I knew this was a significant enough issue that it would
end up in the courts."
The bearded and
bespectacled Mr. Christina, an avid gardener and father of three grown
children, is a relatively obscure figure behind the litigation. But the
Harvard University graduate has been a central figure in a legal
standoff that is likely to wind up at the U.S. Supreme Court.
"He's the person who came up with this," said
Thomas Miller,
a resident fellow at the conservative American Enterprise Institute. "He deserves full credit."
On
Tuesday, a panel of the U.S. Court of Appeals for the District of
Columbia Circuit struck down the authority for the subsidies on the
federal exchange used by up to 36 states. It held that a regulation by
the Internal Revenue Service allowing the subsidies nationwide wasn't a
permissible interpretation.
But that
same day, a panel of the U.S. Court of Appeals for the Fourth Circuit in
Richmond, Va. came to the opposite conclusion, ruling that consumers in
states using the federal marketplace could get subsidies.
Mr.
Christina is reluctant to discuss his reasons for scouring the law.
"It's not really that I was looking for anything in particular," he
said. "My role at the firm was to be the person keeping up with the
statute."
He also declined to discuss
his view of this week's contrasting opinions, saying diplomatically that
"each opinion explains its own reason for reaching the opposite
conclusion.
Mr. Christina had previously
played a role in other conservative causes. He submitted an amicus
brief to the Eleventh Circuit for the South Carolina Chamber of Commerce
in Florida, v. the Department of Health and Human Services, urging the
court to invalidate the individual mandate. Asked if he's opposed to the
health law, Mr. Christina says it is so vast that he's not sure anyone
can say they are for or against it.
The
lawsuits that triggered this week's opinions center on how to interpret
language in the 2010 health law that allows subsidies when consumers buy
insurance on an exchange "established by the state." Challengers say
that precludes the federal exchange; supporters say that wasn't
Congress's intent.
"It's absolutely
crystal clear that when a state elects not to set up the exchange but
have the federal government do it for the state, the federal government
stands in the shoes of the exchange," said
Sara Rosenbaum,
a law professor at George Washington University, adding, "The
statute couldn't be clearer that that's what they meant."
In
December 2010, Mr. Christina presented his findings at the American
Enterprise Institute. AEI's Mr. Miller was intrigued. He saw the seed of
a potential legal challenge to the health law.
The
issue gained steam in 2011 when
Jonathan Adler,
a law professor at Cleveland's Case Western Reserve University,
began looking at the language of the statute, he said, and did a Google
search where he found information on Mr. Christina's work.
Mr.
Adler emailed
Michael Cannon,
an acquaintance and the director of health policy studies at the
libertarian Cato Institute, about the statute's language. "When I got
this email, my jaw dropped," said Mr. Cannon, a vocal opponent of the
law.
In May 2012, the IRS issued a final
rule allowing subsidies to be distributed to people who buy health
coverage on the federal exchange. To Mr. Adler and Mr. Cannon, that ran
afoul of the statutory language of the law.
Mr.
Miller was also discussing a fallback if the Supreme Court upheld the
health law's individual mandate, including a possible legal challenge
over the language of the law. Mr. Christina wrote draft complaints just
in case.
In June 2012, the Supreme Court
handed opponents of the law a defeat by upholding the individual
mandate. That day, Mr. Miller jumped on a conference call with Mr.
Christina and others to discuss moving ahead with a lawsuit on the law's
language.
He drew on
Sam Kazman,
general counsel at the Competitive Enterprise Institute, a
libertarian think tank. They coordinated the lawsuits and funded the
effort. The institute reached out to
Michael Carvin,
a lawyer at Jones Day who brought the two cases the courts ruled
on Tuesday. The first lawsuit raising the claim was filed in September
2012 and there are currently four cases in the courts.
Mr.
Christina's seen a subdued response to this week's ruling given his
role remains relatively unknown. Although Mr. Miller credits him with
the lawsuits' origin, Mr. Christina prefers to say it was the work of
many.
Write to Stephanie Armour at stephanie.armour@wsj.com
I hope he can help. See eg NY Const Art 1, Sec 3. Perhaps he supports Andrew Cuomo for President?
HI-
Thanks for
the help. The item’s below. I’d be happy to mail you a copy,
if you give me a mailing address.
Claude
Solnik
(631)
913-4244
Long
Island
Business News
2150
Smithtown Ave.
Ronkonkoma, NY 11779-7348
Home > LI
Confidential > Stop
scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
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