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
Mespo and Swarthmore,
good catch on Karen’s oft repeated claim on doctors in California. While I agree that Congress is dead in the water on all issues, that alone isn’t enough to allow any President to go beyond his/her executive branch authority. However, if he has the authority to do anything that can help, I am all for it. He does need to keep on his bully pulpit and call out the right for their admitted obstruction.
Annie,
Medicare for all sounds good to me.
rafflaw – we know from reports from various states that doctors were put on plans that had not actually be contracted. Cover California may say they have the doctors, but they may really not have the doctors.
Correction:79% of people age 65 or older are satisfied with Medicare.
http://www.gallup.com/poll/171680/americans-remain-satisfied-healthcare-system.aspx
Gallup poll from June 2014. 80% of people age 65 and over are satisfied with Medicare, LOL! Beware of people who don’t post links to polls and make false assertions.
Annie – when you read a poll do not misread it. Here is what the poll actually says
You will notice it does not say all or almost all, just most.
It clearly says that 79% of people age 65 or older are satisfied with Medicare. I’m done responding to you. Quit obfuscating.
RTC – you said, correctly that it was first instituted during the Civil War. I gave you that, then just continued on. Check and mate and new player please.
Annie – exactly where does it say that, because I quoted your article and bolded the important section.
Monsieur Villefort,
Simply because Obama lacks the capacity to work with congress as L.B. Johnson did, it does not follow that such frustration gives rise to new and unheard of executive powers.
Jim22 wrote “Wasn’t the govt. originally funded through tariffs?”
Paul wrote “the income tax came late, early 20th century”
No kidding, really? If you are claiming that the 16th Amendment is unconstitutional, then I will forever ignore your posts.
Follow this:
1) We passed the 16th Amendment, allowing the federal government to collect income taxes.
2) The federal government started using the new income for all sorts of things including military spending (whether this is good or bad is not relevant).
3) The U.S. officially became “socialist” because people are forced to pay for things with which they may not agree (this is according to the declarations of Jim22, John, and others).
4) Therefore, calling someone “socialist” because they believe that the government should spend more money than you believe is proper is ridiculous; it’s just a matter of degree.
Sauce, Wasn’t the govt. originally funded through tariffs?
Saucy – the income tax came late, early 20th century. Some states have no income tax.
happypappies wrote “you can’t make a Socialist State out of the United States”
As I wrote in another thread in an answer to Jim22, we already did. We collect taxes for the common defense, so we are socialist, like virtually every country in the world. Righties and lefties want to draw the line in very different places, but to call someone a “socialist” for espousing a particular view is disingenuous, not to mention an incitement.
As I pointed out on the other SCOTUS thread, watch out for liars. Medicare has NEVER been loved by the majority of people on it, at least back as far as Gallup has polled. The most recent Gallup poll from this past Jan. actually has some of its highest #’s in Medicare’s history. A Whopping 12% are very satisfied. Actually one of the highest ever, it has almost always polled single digits in that category. Only 30% are somewhat satisfied. Big government cultists will lie, cheat and steal to make it look good. Or, like the VA they’ll cook the books and let veterans die while collecting bonuses. Always watch for liars folks. I did it for a living.
I agree with John. Annie you can’t make a Socialist State out of the United States Sorry Charlie
Darren Smith wrote “Can’t have it both ways”
That’s true, but we clearly have a dysfunctional, if not broken, government.
The Constitution, Article II, Section 2, states that “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
“Advice and Consent” does not mean that the candidate must be a card-carrying member of the majority party in Congress. Turley could write a few pages on the definition of “Advice and Consent” with many references to secondary law, but let’s read what George Washington thought of it (www.senate.gov/artandhistory/history/common/briefing/Nominations.htm):
“President George Washington was aware that his every action would have significant consequences for the success of the new government and he predicted that the making of appointments would be among his most difficult duties. In selecting nominees, Washington turned to his closest advisers and to members of Congress, but the president resolutely insisted that he alone would be responsible for the final selection. He shared a common view that the Senate’s constitutionally mandated ‘advice’ was to come after the nomination was made.”
Annie
The VA system isn’t Medicare. No one wants to give up their Medicare, they LIKE it.
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but the VA infrastructure COULD be a boon for an expanded single payer system covering everyone…… 😉
I just heard this on talk radio and wish I could take credit for coming up with it. About yesterdays Hobby Lobby ruling. The Supremes just told us that if you like your God you can keep your God.
John, I couldn’t agree more. The problem is ever since the founders put us in motion, the progressive thought has been irreversibly chipping away at our rights and turning us into an entitlement nation. Some good and necessary things changed along the way but they made people more free not less. I’m afraid it is a lost cause since the message of self responsibility is a tough if not impossible sell to those living off the govt. The whole thing will need to collapse (Like AL bringing up the stock market, it is only there because there is no other place for people to put their money.) before change will really happen. It will most likely be ugly. I kind of hope I get to see it since I’d like to be on the other side.
http://www.opednews.com/articles/21st-CENTURY-BREAKDOWN-by-Jim-Quinn-100223-289.html
annie, It is either Obamacare or nothing as Boehner will remain speaker for awhile unless the tea party decides he is too liberal and tosses him. I think he has his lawsuit going to appease the tea party.
annie, Really no change until re-apportionment takes place in 2020. Maybe some state legislatures and governorships will flip by then. I think a few will this year.
I don’t agree.
If the president does not get the result he / she is looking for by the legislature it does not give the president the authority to bypass congress and initiate actions reserved to the legislature. Just because it is popular for the president to do so with this issue what would happen if the public greatly objected to a president doing so with very unpopular actions? Can’t have it both ways.
Karen S wrote “in my opinion, Obamacare should be repealed”
And return to the days when insurance companies could deny coverage for any reason? How very sporting of you.
“Actually, it’s been determined that FDR extended the 15 year depression by 7 years.”
The Depression stopped with the onset of WWII, which can be considered as the world’s largest stimulus package. WWII gave us full employment almost immediately. Actually it gave us far more than full employment by the original definition given that women were rare in the workforce before WWII. Since WWII started 12 years after Black Tuesday, and 15 is not equal to 12, anything else written in the article is suspect.
saucy – many economists feel that the Great Depression did not end until after WWIi, so you need to add 4 years to your total.
So Republicans created this system that forces executive action in the absence of Congressional action, because the Congress is Republican majority with a Democratic President, because of deep down dirty politics of gerrymandering. What a flipping mess.
Annie:
No the separation of powers doctrine says they can do just that. That’s why if Obama wants to handle immigration without this gang of do-nothings I’m all for it.
The ballot box is supposed to handle this problem but that is so screwed up by Republican redistricting it’s nearly impossible to accomplish.
Karen S:
“Why do 75% of doctors in CA not accept Obamacare policies?
Why is the CA doctors association adamantly opposed to Obamacare, because its doctors cannot afford to keep their doors open for $25/doctor visit?
Guess it’s a mystery. :)”
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Your nose is growing again and its FoxNews’ fault:
From the LA Times: “In fact, according to Covered California, the only source with verifiable numbers, some 58,000 doctors, or more than 80% of the state’s practicing physicians, will be available to enrollees in the exchange’s health plans.
The “boycott” claim originated with Richard Pollock, a reporter at the conservative Washington Examiner, whose piece doesn’t appear to reflect how the California exchange actually works.
“That article was wrong,” says Molly Weedn, spokeswoman for the CMA. “We have no idea how many doctors are participating. We don’t collect that data.”
http://www.latimes.com/business/hiltzik/la-fi-mh-boycott-20131212-story.html