July 23 2014

Halbig: An Even Bigger Deal than You Think

Charlotte Hays

The D.C. Court of Appeals three-judge ruling yesterday on Halbig v. Burwell could lead to further unraveling of ObamaCare.

That is a big deal. But the ruling is even more important than that: it is nothing short of a victory for the concept of the law as written. As you no doubt already know, the judges found that the way the ObamaCare law is written makes it illegal for the federal government to give subsidies that were supposed to be dispensed through state exchanges.

The problem, of course, is that most states, confronted with the complexity of the law, did not bother to set up exchanges. No problem, said the administration, which naturally assumed that this lack of state exchanges was no impediment to its dishing out subsidies that are essential to making ObamaCare’s prohibitively expensive premiums affordable. The judges—one extremely reluctantly—thought otherwise.

National Review’s Charles C. W. Cooke sums up the ruling this way:

In plain English, then: There is nothing in the text of the Affordable Care Act that permits the federal government to subsidize health-insurance plans sold through federal, and not state, exchanges. Consequently, the Obama administration has been acting illegally since January.

Contrary to insinuations from the Left, the court did not base today’s decision upon a “glorified typo” or upon a minor mistake made within a broadly legible statute, but instead upon the plain meaning of the law itself.

Meanwhile, Cooke's editors at National Review comment in an editorial headlined “Words Have Meanings” that it is odd that the case had to be brought in the first place:

It’s an odd world in which judges are accused of usurping the role of Congress for ruling that the executive branch must follow the text of a law Congress wrote. But that’s what has happened today. In Halbig v. Burwell, the D.C. Circuit Court of Appeals ruled that Congress never gave the federal government power to provide subsidies and assess penalties under the Affordable Care Act in states that haven’t established their own health-insurance exchanges.

It should be noted that the Fourth Circuit Court of Appeals in Richmond, Va., reached the opposite conclusion in a similar case yesterday.  The Richmond court ruled that what is in effect an IRS re-write of the ObamaCare law as written is fine, giving enormous power and discretion to un-elected bureaucrats to finesse an unworkable law.  

These rulings are likely destined for the Supreme Court. Since Halbig was heard by a three-judge panel, the next stop is probably going to be an en banc hearing (with all the judges on the court weighing in on the case) at the request of the administration.

While the outcome of this case will have a profound effect on one of the worst-written and most massive laws ever passed by a U.S. Congress, we need to keep the bigger picture in focus.

Cato’s Michael Cannon and Case Western law professor Jonathan Adler write of Halbig in today’s Wall Street Journal:

At its heart, though, Halbig is not just about ObamaCare. It is about determining whether the president, like an autocrat, can levy taxes on his own authority.

The president's defenders often concede that he is doing the opposite of what federal law says. Yet he claims that he is merely implementing the law as Congress intended.

Such claims should be met with more than the usual skepticism when made by a president who openly advocates unilateral action—"I've got a pen, and I've got a phone"—when the legislative process doesn't produce the result he wants, and when they are made by a president whose expansive view of his powers the Supreme Court has unanimously rejected 13 times. Unfortunately, the abuse of power exposed in Halbig may trump them all.

Maverick liberal law professor Jonathan Turley, who has become increasingly vocal about what he sees as President Obama’s overstepping his constitutional limits of power, has also written about the Halbig ruling. Turley, who last week told Congress that Halbig was a “live torpedo” in the water for ObamaCare, argues that the ruling means that the courts holds Congress “supreme in matters of policy,” an old-fashioned notion embedded in the Constitution that the pen and phone president may have forgotten.

As welcome as the Halbig ruling is, this is not the end of the matter. Cooke quotes Talking Points Memo to the effect that Senator Harry Reid’s nuclear option, which put three new Obama judges on the D.C. Appeals Court, could save ObamaCare if—when—the case is heard en banc. Four Supreme Court justices would have to want to take the case for it to be decided there. But at least we can score one for the rule of law--as written.

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