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
RTC, Agreed on the Bush drug “benefit.” I still don’t understand the “donut hole” but I will need to in 3 years! I know I won’t be one of the current 12% very satisfied w/ Medicare. It will probably be back in the single digit % by then.
BTW, again John: The preamble doesn’t set the parameters of the constitution it sets the trajectory. Big difference
BTW John: Dahlia Lithwick (she’s a journalist for legal affairs you never heard of) says that there are some cases coming down the line that could expand on the religious exemptions that corporations may claim.
The prescient are often dismissed as crazy
John: That is some first-class jibberish. I’m sure the boys down at the pub all think it makes sense, but illustrates the problem with our electorate perfectly .
Ginsberg writes 35 dissent pages. It takes me 1 word to define what the Founders said about government controlling businesses – unconstitutional. The Founders gave the recipe for the pizza in the Preamble. You get to pick your topping in the Constitution. The Preamble is not only binding, it sets the parameters within which the Constitution provides for governance. The Preamble is the context. That’s why the Founders put it squarely in front of the Constitution.
Justice, Tranquility, Defence, General Welfare, for the government,
securing “the blessings of liberty” to ourselves.
I’m gonna take a wild guess that the Founders told us how they formed a more perfect union.
Then they provided their progeny with the tool to perpetuate it.
You can do what you want per the Constitution; you can change the Constitution but you can’t change the Preamble.
To satisfy those who deliberately misunderstood, they wrote a Bill of Rights but Madison decided that was the end of amending the Constitution lest it be destroyed.
I’d have to say Madison’s fears have been realized. The Constitution has been destroyed. It began with the insurrectionists who sold the bill of goods of ignoring the Preamble.
Franklin said, “we gave you a republic if you can keep it.”
Franklin, Madison et. al. knew this constitutional republic was delicate and fragile. They must have believed strongly in self-reliance and the honor system.
The Progressives, liberals, socialists, democrats say the Founders developed redistribution and formed a more perfect government that would provide everything that everybody wanted including love; a government that tells you whom to love. whom to do business with, whom to hire, what school to brainwash you, witch doctor you can keep, etc., etc., ad infinitum, ad nauseam.
Not.
Why is it I don’t read any of that collectivist, communal bull-ony in the writings of the Founders, Preamble or Constitution?
Because it is just not there.
Ginsberg gives us 35 pages of her psychosis.
You need to read instead of slurping up all that kool-aid your parents served you
Jim: The insurance companies may be national but they must still conform to the individual state regulations. So you should check a little more closely. If they allowed companies to offer car insurance the way they allow credit card companies to issue credit cards, you’d have a race to the bottom and wind up worthless insurance policies.
BTW, kid, everybody DOES avail themselves of healthcare, sooner or later, whether they drive or not. That’s a key difference between auto insurance and healthcare insurance. Moreover, there is no such thing as a free-market in healthcare. One day, you’ll understand that when your child has a life threatening illness, you will spend everything you have and more to get them the treatment they need; there’s no choice involved and it creates an unfair advantage (that’s economist lingo) for healthcare providers.
Obamacare is going to prevent a lot of bankruptcies, something the banking sector supports.
No no, the point is that a state normally considered highly libertarian, if not downright anti-govt, is finding that single payer healthcare is cost efficient. Vermont is another state that intends to implement that system as soon as the law allows them to.
Now, I can guess what your take on Vermont is, but the fact is that the people of that state are, on the whole, fiercely independent, pragmatic, and libertarian; maybe not the way you understand it, but libertarian in the best sense of the word.
The kool-aid the Republicans are serving up is that Obamacare needs to be repealed. In truth, there are only certain parts of it that they want to eliminate, like provisions that require them to spend most of the premiums they charge on claims and no exclusions for preexisting conditions.
As a people, we decided that no one should be refused emergency medical treatment. It makes sense; a kid hops on his bicycle to go to his girlfriend’s house for a bootycall and forgets his ID and gets hit by a car, or a motorist is involved in a fiery accident and their ID,along with insurance information, is incinerated; people arriving at the hospital need treatment and their life shouldn’t hang on whether the paperwork is in order.
Likewise, people who are having medical emergencies need treatment, and emergency rooms can’t turn them away. Granted, people without insurance turn to emergency rooms for conditions that aren’t normally considered life-threatening, but require treatment all the same. Many of these people lack the resources to pay for the services, so hospitals shift the costs onto other patients who can pay. This situation is a primary driver in the rising cost of healthcare, and one that Obamacare seeks to alleviate.
Frankly, single-payer healthcare should be considered a matter of national security. If you have someone out there with a serious communicable disease, you want them to get treatment as quickly as possible. You definitely don’t want them putting off a trip to the emergency room because they’re worried about how to pay for it. It’s only a matter of time before a virus that causes the next pandemic appears. Anything we as a nation can do to improve access to healthcare is going to save more lives than all the wars in the Middle East combined.
RTC – This type of program when done right can be done done efficiently. However, there were several things in the there that were not going to fly state wide for all of Montanans. First, they are not treating very many patients and when they add the second unit they are not going to be adding many more. We already have service like these, they are called VA hospitals and you know what a mess they are. Second, they really do not know what their long term costs are since they are doing the retired as well. That is going to ramp up their costs little by little.
RTC, -Thanks for pointing how much car insurance companies didn’t suffer when every driver on the road was required to have insurance.”
Last I knew people weren’t forced to buy car insurance who don’t drive and it’s run by the free market across state lines. But you’re so wise you knew that.
I can see why Montana had no speed limit in day time. I am sick and tired of limits on this and that. Like term limits. Just the other day I got kicked out of the cathouse for over extending my term. Y’all know what a term is. And speed limits. Too slow they say. I would like to form a closed corporation which expounds the religious views of my grand daddy. Then my employees could have work safety insurance but no coverage for foot injuries.
Of course there’s no free lunch, but Montana’s expanding the program, republicans are conceding it works, and you can’t even get to first base
I wouldn’t get real excited yet. Remember Montana is the state that used to have no daytime speed limit.
“repealed in 1872”
Had to be instituted in order to be repealed. That was the first federal income tax.
Check and mate.
“sadly a bunch is liberal/progressives have moved into the college town areas of Montana and ruined for everybody else.”
Guess again,Shulte boy. Republicans in the state have grudgingly admitted that the single payer system works.
http://californiaonecare.org/montana-sets-up-single-payer-guess-what-happens/
RTC – there is no free lunch even in lovely Montana. And I see that it was an executive decision by the Democratic governor, not through the legislature.
Schulte: Quit wheedling. Nearly 80% of seniors are satisified with medicare. That is significant.
So 20% are dissatisfied, big deal. 20% of Americans approved of a president that lied and deceived this country into going to war in Iraq, ruined the economy, and dropped the ball and let 9/11 happen.
20% of any given population are crackpots. I know where you fall, you’re in the 13% that still supported Cheney
RTC – read the article carefully. That is not what it says. Nice ad hominem attack as well. I know I am hitting home when you start in.
RTC – sadly a bunch is liberal/progressives have moved into the college town areas of Montana and ruined for everybody else.
Actually Karen, Montana. not exactly a bastion of liberal principles, set up a single payer healthcare clinic for state employees and retirees, and saved $1.5 million. By 2017, everyone in the state will be eligible for single payer coverage. Vermont too.
Jimm22: “I agree and it should also be private not govt. run.” in agreeing with Bailers77 about the role of employers supplyong health insurance.
Good news, sport It is. Private companies issue and administer the policies; there are commercials running for health insurance and there will be more. Thanks for pointing how much car insurance companies didn’t suffer when every driver on the road was required to have insurance.
T
Bailers 77: Your comment about doing away with health benefits supplied by employers is illogical. It has always been viewed as part of the compensation package and employers wishing to hold onto their employees make sure it’s attractive. Employers are able to bargain for better rates and coverage than individuals because of their buying power, which confers bargaining power, which we the People would have had if Bush didn’t lock us into a medicare drug plan that prohibits bargaining with drug companies.
Nick: The reason people are not satisfied with Medicare is mainly that they have to pay to much for medication, thanks to Bush and his crony giveaway to Big Pharma.
My neighbor won the Bronze Star in WWII; he complains often about the amount of money he has to spend each month for medicine.
Jim22: The federal govt was originally funded by debt. The genius of Alexander Hamilton was to take the debt we accrued during the Revolution and turn them into bond issues.
The income tax was originally instituted during the Civil War to pay for the cost of preserving the union.
RTC – the income tax was repealed in 1872. Re-instituted in 1894 and basically declared unConstitutional, since taxes had to be apportioned by census, in 1895. Hence we come to the 16th Amendment ratified in 1913.