For those of you who don’t know, Halbig v Burwell is the latest challenge to Obamacare that the DC Court of Appeals is set to rule on as early as today or, at the latest, by the end of the week.
This was the case I thought had the best chance at success. After all, how do you deny something that is actually written in the law. The law states specifically that subsidies are available for those who enrolled in insurance plans through exchanges “established by the state.”
the Halbig plaintiffs — individuals and small businesses in six states that didn’t establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn’t establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.
The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute’s language does limit subsidies to residents of places with exchanges “established by the state,” that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.
The District Court’s ruling left me aghast and feeling hopeless that this case would ever be ruled in favor of the plaintiffs, but as Turley also notes there is hope for the plaintiffs in the form of some recent rulings by the Supreme Court:
Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments.
A ruling against the administration could result in a mass exodus from Obamacare leaving it on life support and facing another challenge in the Supreme Court.
So, many of us wait and hope, that somehow we will be rescued from this creepy carnival called Obamacare.