Two separate federal courts hearing two separate cases issued contradictory opinions Tuesday regarding the legality of subsidies being provided to people in states with federally-run health care exchanges, and Obamacare and all its embarrassments are back in the news. It’s all very complicated, as is the case with everything Obamacare, but well worth delving into if only for the comic relief.
The dispute in both cases arises from a few words among the 2,000-plus pages of the hilariously named Affordable Care Health Act, which state in unusually clear language that the subsidies shall be made to those who are eligible by their lack of income and had enrolled in exchanges “established by the State.” Only 14 states were willing to go along with the Obamacare boondoggle by establishing their own exchanges, so in the other 36 states the law as written would stick those under-funded suckers who signed up with the full cost of their over-priced plans, which would cause many of them to stop paying their premiums and pay the much smaller fine instead, thus leaving the insurers with a sicker and less profitable pool of customers, thereby raising the poor folks’ ire and everyone else’s premiums and further endangering the already unpopular law’s chances of political survival.
The United States Court of Appeals for the District of Columbia, in a two-to-one ruling in the Halbig v. Burwell case, insisted that the law says what it says and should be enforced accordingly. A few hours later the Fourth Circuit Court of Appeals ruled in the King v. Burwell case that the law doesn’t really say what it says, and in no case should be enforced according to something so silly as the law’s plain text. The unfortunate Burwell, whoever he or she might be, seems headed to the Supreme Court for a final resolution.
Until then, it will be amusing to hear Obamacare’s dwindling number of defenders argue that it is the most brilliantly written legislation in American history while simultaneously arguing that it should not be read as written because of its absurdity. The oxymoronically named White House Press Secretary Josh Earnest helpfully explains that “You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credit that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace,” but it takes an especially fancy legal education to conclude that is not what Congress wrote into the law. Some argue that the language was quite deliberate, and intended to force recalcitrant Republican governors into starting state exchanges or face the wrath of their dependent class voters, although the estimated four to five million people being subsidized are hardly a formidable voting bloc when spread across 36 states, and far outnumbered by the voters being asked to pick up the tab for the subsidies, but if the Democrats now want to insist that it was just one of those typographical errors that are bound to happen when you’re hastily ramming an unpopular law down the public’s throat in the literal dead of night without a single vote from the opposition party they are free to do so. The D.C. Court of Appeals rejected the government’s argument that the plain text of the Affordable Care Act “renders other provisions of the ACA absurd,” which seems reasonable given that the absurdity standard would render most of the Obama administration’s actions illegal, and any Republicans who insist that the law should be enforced according to what it says are also free to do so.
We’re not such reckless gamblers that we would wager any amount of the final resolution of this matter, but we hopefully note that Professor Laurence Tribe of the impeccably fancy Harvard Law School has said “I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.” The good professor probably doesn’t have a family farm, and even if he does we can’t imagine him plowing its fields, so we take his comment as merely allegorical, but it’s heartening nonetheless. Even if the argument that a law shouldn’t be enforced as it is written just because it’s written that way does prevail, it will be nice to at last be done with the archaic pretense that the law has any meaning other than what the president wants it to mean.
– Bud Norman