There is a sleeper case currently before the DC circuit originally filed as Halbig vs. Sebelius and now styled Halbig vs. Burwell. One hasn’t read a lot about it since Judge Paul Friedman of the Federal District Court for the District of Columbia found for the government and saved Obamacare’s bacon once again (the Perils of Pauline got nothing on President Obama). It’s a sleeper, as I said, but the case is now on appeal to the DC Circuit and I’ve been watching it (actually them, Halbig is one of four, but the others aren’t as far along) since the inception as it really does pose an existential threat to the law. I haven’t written much about it as where it will go is still highly uncertain. John Fund is up about it over at NRO, which has prompted me to at least offer a heads up.
The issue in the case is technically simple. The text of the PPACA requires the premium subsidies be paid through the health insurance exchanges “established by the State.” According to Fund (I have read the law, but I didn’t go back and count) it says this no less than nine times. Partly this was done because the authors of Obamacare wanted to provide a strong incentive to the several States to establish their own exchanges. In the first draft of Obamacare, the States would suffer penalties for failing to do so. But politics reared its ugly head and changes were forced in the language. The Democrats needed every vote in their caucus to drag the law, kicking and screaming, over the finish line. Senator Ben Nelson was worried about federal influence on State exchanges, and the change was written in to buy his vote. In addition to the text of the statute, the Congressional Record contains debate language saying the same thing: the purpose of the restriction is to incent the several States to establish their own exchanges rather than use the federal system, which was designed as a backup ploy.
Comes the day, a whole lot of people were surprised to see more than 30 States decided not to establish their own exchanges, or tried and failed, and were thus thrown into the federal exchange system. Reading the law as it is plainly written would have been disaster: less than 20 States would have been full participants in Obamacare which was not what the law’s authors envisioned; they had measured everybody in the country (save themselves) for a slave collar. Another point at issue is the available coverages have to be “affordable” under the law’s definition before the Individual Responsibility Payment comes into play. No affordable coverage, no requirement to buy. That little problem is Obamacare’s death knell, and the government knows it very well. So, no problemo! Into the breech leaps the IRS to offer a one paragraph “interpretation” of the statute, saying they would pay the subsidies regardless of where the exchanges originated.
Now comes Halbig, et al, before the court to argue they are resident in non-establishing States and under the language of the statute would be exempt from Obamacare if IRS was following the law as without the subsidies they could not afford coverage. The government’s argument, basically, is the Congress plainly intended Obamacare to enslave everybody without exception, and thus payment of the subsidies in such States as did not establish is within the intent of the law, and just you legal beagles never mind what the law actually says. Judge Friedman, as I said above, agreed with them.
Why, then, do I think the DC Circuit may do something else? They most surely don’t want to. During oral arguments one of the judges asked appellant’s counsel if he correctly understood appellant wanted the Court to effectively invalidate Obamacare; and the law dog replied yes, Your Honor, that’s exactly what we want. I will guarantee you, without odds, none of the judges on the Circuit Court like that idea, not even the Republican appointees, as it will start a firestorm. Even so, it may wind up being their duty. It’s one of those “that was then, this is now” things. Then, CJ Roberts had just spat on his oath and crawled across a couple of miles of broken glass to find an excuse not to overturn the entire law in Sebelius, writing “it is not our job to protect the People from the consequences of their political choices.” Now, of course, matter are different: the Court is beginning to understand it is their job to protect the People from the consequences of an utterly lawless administration. Justices as diverse as Scalia (hardly surprising) and Kagan (very surprising) are now trying to assure the written text of the statute controls; that the government doesn’t get to just make it up as they go along. Fund’s article counts a baker’s dozen examples, and if you ask me, I’d say more are coming, potentially including this one.
The whole of the federal judiciary, from the Supremes on down, are getting pretty fed up with Mr. Obama’s “pen and phone” strategy to ignore the Congress and abrogate all power into his own hands. Let us all devoutly hope they get busy and fix it before the revolution comes.