Below is my column today in the Los Angeles Times on a little discussed case that presents a far greater threat to Obamacare than did Hobby Lobby. The Hobby Lobby case is a huge blow for the Administration in terms of one of the most prominent provisions of the Act and recognizing religious rights for corporations. However, it is more of a fender bender for the ACA. Halbig could be a train wreck of a case if it goes against the Administration. We are expecting a ruling any day and the panel is interesting: Judges Harry T. Edwards (a Carter appointee), Thomas B. Griffith (a George W. Bush appointee), and A. Raymond Randolph (a George H.W. Bush appointee). In oral argument, Edwards was reportedly highly supportive of the Administration’s argument while Randolph was very skeptical. That leaves Griffith. It could go 2-1 either way, though in my view the interpretive edge goes to the challengers for the reasons discussed below. This case however is largely a statutory interpretation case, though it has the same separation of powers allegations of executive overreach that we have seen in other recent cases.
Now that the Supreme Court has issued its ruling in the Hobby Lobby case, the legal fight over the Affordable Care Act will shift a few blocks away to another Washington courtroom, where a far more fundamental challenge to Obamacare is about to be decided by the powerful U.S. Court of Appeals for the D.C. Circuit. Indeed, if Hobby Lobby will create complications for Obamacare, Halbig vs. Burwell could trigger a full cardiac arrest.
The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges “established by the state.”
But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.
Indeed, 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.
But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.
In 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.
The D.C. Circuit Court is expected to rule any day now on the Halbig case, and supporters of the Affordable Care Act are growing nervous. In January, an Obamacare advocate described the Halbig case to a reporter for the Hill as “probably the most significant existential threat to the Affordable Care Act. All the other lawsuits that have been filed really don’t go to the heart of the ACA, and this one would have.” And in the intense oral argument before the D.C. Circuit Court, the administration seemed to struggle to defend its interpretation.
If the ruling goes against the White House, it’s hard to overstate the impact. Without subsidies, consumers in 34 states would face huge additional costs and, because of those costs, potential exemptions from the law. And voters — a substantial percentage of whom have never liked Obamacare — would be further alienated from the Democratic Party just in time for midterm elections.
Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.
The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.
Jonathan Turley is a professor of law at George Washington University and has testified in Congress on the executive orders under the Affordable Care Act.
July 1, 2014 – Los Angeles Times
My parents were often debating about FDR and social security. My father, a German American third generation Republican, thought that Social Security and Medicare were un-American. My mother said that they were quite German. She was Scots Irish German American. She was an FDR fan not a Truman fan. Now nobody debates Social Security much. In fifty years no one will debate ObamaCare much because it will not exist. We will have to come round to a European social medical system. We have Doctor First Capitalism now. Historians looking back, give FDR credit for saving the economy during the Depression. Right now no one, or few, give Obama credit for saving the economy when he came in. Historians will give him credit. When George Bush left office the Dow was at 9600. Today it approaches 17,000. No one gives Obama any credit for this. When the RepubiCons take over the Presidency again I will flee the stock market. I am thinking of moving to Canada just for the health care. I am quite healthy at my age but I don’t want to ever go to a doctor in AmeriKa. Unless he or she is a Canadian here on visit. If the RepubliCons take over the Senate in this mid term election then I will flee the stock market. So will the flees.
Karen what has failed is health care doled out by middle men who make billions of dollars, insurance companies. Why go back to THAT failed model?that’s insanity.
http://www.pnhp.org/news/2014/june/expand-medicare-to-serve-all-veterans
Expanding Medicare to serve all veterans.
http://www.pnhp.org/news/2014/june/us-doctors-migrating-north
Why are US doctors going to Canada to practice?
http://www.pnhp.org/news/2014/june/in-support-of-medicare-for-all
In support of Medicare for All. From a Rebublican.
Here’s how Justice Ginsburg begins here dissenting opine;
The female justices all dissent against the males opinion –
http://www.pnhp.org/the-va-another-reason-for-single-payer
The VA: Another reason for single payer.
Just picture this. A corporation absorbs the “sincere” Satan worship belief of the corporation’s owner who is also a Mormon (and believes lying is okay) – hence all laws “under G-d” and morals are against their “beliefs”.
Supreme Court Justice Ruth Bader Ginsburg writes scathing opine of the Hobby Lobby conundrum and the Pandora’s box it has opened.
http://www.scribd.com/doc/231968582/Burwell-v-Hobby-Lobby
Karen, How many times have the republicans tried to repeal it? How much time have they wasted while not doing a thing on immigration? The republicans don’t have the votes to repeal Obamacare and the democrats don’t have the votes for single payer.
But there are people in this world, who vote, who believe that you can keep repeating a failed experiment and miraculously get a different result.
smallguvguy – yes, the VA is the only single payor system we have. Isn’t it great? And even when gross negligence causes the deaths of dozens of vets, no one can be fired because they’re government union employees! Wonderful display of single payor and unions.
Bob – dictators often rise at the will of the people. The fools believe that he will use the powers they’e allowed him to grasp with magnanimity. It’s OK if their party has an Imperial Presidency, as long as it’s not a Republican.
What I would really like is for Congress to fight Obama illegally delaying the employer mandate. He delayed it until after the election because it will have disastrous consequences for his party. But it will hit. And it is completely unfair to target people on the individual insurance market, while giving a stay of execution for the employer mandate.
If it’s such a great law that he’s fighting all the way to the Supreme Court to keep it, then let it be enacted in full, as is legally required. He needs to follow his own law. Let the employer mandate hit and then face the music.
I especially like the section about how it is unaffordable without subsidies. I KNOW!!! That’s exactly what I’ve been saying. The middle class, which does not qualify for subsidies, CANNOT afford it. So true!!!
And furthermore, in my opinion, Obamacare should be repealed.
At issue is whether “Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority” in “yet another violation of the separation of powers.”
And on the RESTORING BALANCE AMONG THE BRANCHES thread
on 1, July 1, 2014 at 2:54 am mespo727272 wrote:
Jonathan Turley: “The framers believed that members of each branch of government would transcend individual political ambitions to vigorously defend the power of their institutions. Presidents have persistently expanded their authority with considerable success. Congress has been largely passive or, worse, complicit in the draining of legislative authority. Judges have adopted doctrines of avoidance that have removed the courts from important conflicts between the branches. Now is the time for members of Congress and the judiciary to affirm their oaths to “support and defend the Constitution” and to work to re-establish our delicate constitutional balance.”
mespo727272: “Raise your hand if you want this Congress and this SCOTUS to reassert itself and lead the nation into a conservative wonderland. Personally, I can wait.”
Monsieur Villefort,
I take it that would you would in favor of His Majesty Obama continuing to violate the separation of powers doctrine.
The VA system isn’t Medicare. No one wants to give up their Medicare, they LIKE it.
For everyone calling for a single payer health system, please read up on the problems veterans are having with VA.
And two of the other four articles cite Turley; while the final entry is only this:
Ruling expected soon in Halbig case
In Halbig v. Sebelius, a three-judge panel of the federal appeals court in Washington is set to decide soon whether the reform law was intentionally written to exclude federal insurance subsidies for people who buy insurance through online exchanges established by the federal government.
Although the black-and-white terms of the law do limit subsidies to people who use state-run exchanges, proponents and judges in two federal courts have concluded that was essentially an error that contradicts the overall intention of the law to expand insurance coverage as widely as possible.
A group of prominent economists has estimated that about 6.5 million people in the 36 states with federally run exchanges would lose their subsidies and likely their insurance coverage if the Supreme Court eventually agrees with the plaintiffs in Halbig.
John Boehner will more than likely remain the speaker of the house for quite a few years. He is firmly against single payer healthcare so there is no chance of the bill even getting a hearing.
Let’s remember this:
As of today at 10:45am there are only four stories on Google News referencing Halbig vs. Burwell and one of them is Turley’s piece in the L.A. Times.
Justice Holmes wrote:
“Hobby Lobby is a HUGE BLOW against democracy and our secular way of life.
Single payer has always been the way to go.”
I completely agree. The executive overreach has to go as well.