U.S. Sen. Ted Cruz, R-Texas, today released the following statement regarding the Halbig v. Burwell decision:
“The D.C. Circuit’s decision today in Halbig v. Burwell is a repudiation of Obamacare and all the lawlessness that has come with it,” said Sen. Cruz. “The Obama Administration, through the Internal Revenue Service, has attempted to dispense revenues to the states without proper congressional authorization, robbing Congress of its constitutionally-provided power of the purse. This decision restores power to Congress and to the people and if properly enforced, should shield citizens from Obamacare’s insidious penalties, mandates, and subsidies. This is a significant victory for the American people and the rule of law, but we must not rest. Americans will continue to lose jobs, pay higher premiums, and receive fewer healthcare choices because of this disastrous law. Every last word of Obamacare must be repealed to restore jobs, growth, and opportunity in our country.”
3. Another court has ruled that the president is breaking the law. The Supreme Court repeatedly ruled against the administration in a variety of cases this year, including the Hobby Lobby decision regarding Obamacare’s contraceptive mandate, the administration’s interpretation of chemical weapons law, and the president’s recess appointment powers. The theme of these cases is clear: that the Obama administration had overstepped the bounds of its authority. The same goes for the D.C. Circuit’s ruling in Halbig. One of the messages of the decision is that the Obama administration had no authority to offer subsidies through the federally run exchanges, that the IRS was not within its legal rights to authorize those credits, and that the executive branch has broken the law in making those subsidies available.
While the dissent was political, focusing on the plaintiff’s motives, the opinion of the court was authored by Judge Thomas B. Griffith, whom the Washington Post has described as “widely respected by people in both parties, and those who have worked with him elsewhere regard him as a sober lawyer with an open mind. There is considerable reason to think he would make a fine judge.” His nomination to the D.C. Circuit drew praise from prominent Democrats including Seth Waxman and David Kendall. Indeed, then-senator Barack Obama himself supported Griffith’s nomination. Griffith noted that while the court’s ruling could have a significant impact on the PPACA, “high as those stakes are, the principle of legislative supremacy that guides us is higher still.”
The D.C. Circuit applied the law that Congress enacted. Any downstream effects of Halbig are the result of the PPACA itself, not today’s ruling. If those effects are intolerable, then it is up to Congress to change the law, not the IRS. If Halbig results in people losing health-insurance subsidies, the blame lies with a president who recklessly offered millions of Americans tens of billions of dollars in subsidies he had no authority to offer, that could vanish with a single court ruling.
Cannon’s goal, stated bluntly and frequently, was that Obamacare had to be brought down by any means necessary. States that did not set up exchanges were in a better position to sue the government. Fewer people in the exchanges meant higher overall costs. To insurers, the “death spiral” was an apocalypse scenario; to Cannon, it meant freedom…
This is the Leninism I’m referring to in my headline. Cannon’s no socialist—quite the opposite!—but he saw a solution to the Republican crisis of watching people grow used to new entitlements. Rip the entitlement away, weaken the system, and a painful short term would give Congress no choice but to undo the law. Take away some of the beams, and what do you know? The roof collapses.
[T]his was not a drafting error at all. The point was to coerce the states into setting up exchanges, and the Left’s premise in structuring Obamacare as it did was its assessment that Obamacare, and especially its subsidies, would be popular. Obamacare turned out to be unpopular, however, and state governors and legislators did not suffer any political blow-back for refusing to help implement it. There was no ministerial drafting mistake; there was a mistaken assumption that the public would rally behind the policy, creating political pressure on state governments. Because statists think Obamacare is a good idea, they figured everyone would be brought around to that conclusion…
Wouldn’t it be refreshing if progressives would come clean about the drastic changes they’d make in the Constitution’s procedure for enacting law? Statutes would be sweeping, open-ended licenses to achieve one or more of the Left’s agenda items—e.g., everyone must have health care coverage—and it would then be left to the selfless, professional bureaucratic experts to work out the details. There would be no court review and no need to seek legislative modifications from Congress; everything would be done by administrative regulation and executive discretion … as long as the executive was a bien-pensant lefty like Obama.
We don’t have that system—not yet, anyway. So we’re told Halbig is about a “drafting error” and subjected to similar blather about “ambiguity” (where there is none), “plausible constructions” (that are implausible), etc. Obama partisans will continue trying to snow courts into ruling that the PPACA says something it clearly does not say—blather that may well work in the end since the judiciary, too, has become very politicized and party loyalty often counts for more than what Congress has written.
This has substantially changed the political dynamic. If Halbig were upheld and the law effectively gutted, the Right’s instinct would be to push for substantial reform — or, preferably, for full repeal. But there would be little incentive for the Democratic party to play along. In a world without federal subsidies, the many red states that have refused to set up exchanges would likely be stuck in an unappealing no man’s land — their voters unable to access the federal dollars that would continue to flow into the blue states that had established exchanges, but bound nonetheless by the still-in-tact federal regulations that were making insurance more expensive.
Would the philosophically opposed crack under the pressure? Possibly, yes. As Halbig neatly demonstrates, the administration has routinely failed to grasp the depth and scale of the opposition to its signature law. But Republicans, too, have exhibited a tendency to overestimate just how much conservatives dislike the reforms — and how vehemently they will fight them. It is eminently feasible that a mortally wounded Obamacare would provoke enough Republican voters into demanding a fix that the law would end up being strengthened, and not further gutted.
In other words: It could pan out that Halbig is reversed not by the courts, but by Congress. If the GOP takes back the Senate — and if the next president is more amenable to altering the system — a flailing Obamacare could provide the impetus needed for Americans to finally put the experiment out of its misery and usher in a new scheme. If not, the plaintiffs could find themselves back at square one. Today was a victory for principle, for common sense, and for the rule of law — for all those virtuous attributes that the republic is intended to exhibit in abundance. But before long politics will intrude. And that’s a different matter altogether.
Because of the nuclear option — when Reid broke the Senate rules to change the Senate rules pertaining to the filibuster of judicial nominees — Senate Republicans were unable to block three of Obama’s nominees to the D.C. Circuit Court of Appeals. As a result, Democrats have a 7–4 majority on the court.
The Justice Department is going to ask the full court to overturn the 2–1 ruling, issued Tuesday morning, which held that people who enrolled in Obamacare through the federal exchange are not eligible for the federal subsidies designed to make Obamacare cost less for individuals.
“If needed further proof that that’s an outlier, all you needed was to wait a couple of hours for the Fourth Circuit — which they decided the exact opposite,” Reid said. “Two activist Republican judges sought to undermine a law that was passed by Congress, upheld by the Supreme Court, and is now benefiting millions of Americans. It seems clear to me that that decision is going to be overturned.”
The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.
But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard…
The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same 5-to-4 majority that rejected the major constitutional challenge to the law two years ago.
6. Life gets harder for Republican governors
When it comes to Obamacare’s exchanges, Republican governors have been able to have it both ways. By refusing to set up state-based exchanges, they’ve been able to boast to conservatives that they rejected Obamacare. But because the Obama administration has been giving out subsidies in their states anyway, benefits are flowing to their residents. If Halbig were ultimately upheld, however, governors would be in a tight spot. Conservative activists would be pressuring them to hold the line and refuse to set up their own exchanges. But there would be an uproar from liberal groups, newspaper editorial boards, hospitals and insurance lobbyists, and protests from individuals who had been receiving subsidies and would be facing the loss of their insurance.
There’s no use sugarcoating it: An adverse Supreme Court ruling would throw the ACA into chaos in three dozen states, including huge states like Florida and Texas. The vast majority of beneficiaries in those states would be suddenly unable to afford their premiums (and might even be required to reimburse the government for unlawful subsidies they’ve already spent). Millions of people would drop out of the insurance marketplaces. Premiums would skyrocket for the very sick people who need coverage the most.
But that’s where the conservatives’ “victory” would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with Healthcare.gov states setting up their own exchanges. If you’re a Republican senator from a purple Healthcare.gov state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange…
If Congress didn’t act, and red-state governors threw their middle- and low-income constituents under the bus, they’d saddle the country with a two-tiered health care system, in which residents of blue states have functioning insurance markets and near-universal coverage, and residents of red states are consigned to dysfunction and high rates of uninsurance.
While these decisions could have major policy implications for President Obama’s signature legislative accomplishment, there is virtually no chance that either one will have any near or even medium term impact on the politics surrounding Obamacare.
Why? Because minds are entirely made up about the law…
Obamacare has been, almost since its introduction into the political debate, a stand-in for feelings about President Obama. Like him, you like the law. Don’t like him, you don’t. And, like with Obama’s approval numbers — which are also in the low 40s at the moment — Republicans are more united in their dislike of Obamacare than Democrats are united in support of it. That was true before today and it will be true after today.
“Just last week I told Congress that Halbig was a live torpedo in the water for Obamacare. And that torpedo just hit.”