Supreme CourtBelow 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


  1. LaserDLiquidator – “Taking contraceptives/birth control is not against the law;
    but this inane decision seeks to make it so.

    Separation of Church n State also means corporations simply Can Not enforce their religious beliefs on the ranks.

    Allowing anyone to break all law (except for taxes)- based upon (purported) beliefs is insane! The Mormon religion teaches that lying for the Church is okay (hence Perjury by Pitten’s because he gives 10% to the sect is now ?legal?)”

    How exactly is it making it against the law to take contraception. It doesn’t say that at all.

    I’m no constitutional expert, but the phrase “separation of church and state” isn’t even in it. What is in it is the govt. can not establish a religion. That doesn’t mean people and business’ have to hide their religion either. But it also means you don’t have to work there or buy products from them.

    If you don’t believe govt. monopolies exist, try enrolling your kids in whatever public school you want or try starting a business that mails letters.

  2. BTW Schulte: That history is not so ancient. i worked with men who were beaten and shot at for demanding an eight hour day. And the most exploitative policies have been exported along with our jobs.

    And because the American worker must compete on a global scale with low paid, sometimes slave, labor, there has never been a more critical need for unions at any point in history.

    1. RTC – I have been threatened by union workers and had a gun pulled on me by a union thug.

  3. Schulte: I was wondering when you were going to clock in. Unions haven’t killed people, they’ve saved lives by demanding safer workplaces. They haven’t destroyed lives, they helped raise the standard of living in this country. They haven’t ruined a single business that was economically sound. The only businesses that went under were the buggy-whip variety, or where the owners were too penurious to pay fair and decent wages to their workers.

    They didn’t cost businesses money, unions actually improved productivity, as Milton Friedman sagely notes. (BTW, could you tell Jimm22 who Friedman was). And as Henry Ford realized, those consumers are also workers. The insanity of the off-shore movement – encouraged by the tax code, Jimmy – is that it assumes that workers put out of work will continue to be consumers, andworkers forced to work for lower wages will continue to consume at former rates of consumption. Our nation, economically, is spazzing around like a chicken that’s had its head cut off. You just fail to realize it. Or maybe you’re paid to deny it. It is, after all, a new economy

  4. And again, Jim 22, you fail to understand what a free market really is. A free market enabled company owners to call out police and federal troops to beat, shoot, arrest, spy on, and harass working men and women demanding better pay, safer workplaces, and eight hour workdays.

    A free market essentially left women open to unequal pay, sexual exploitation, and limited job opportunities.

    A free market allowed company owners to tell workers where they may live, charge them exorbitant rents, and limit who could visit them in their homes. A free market also allowed companies to determine where they could shop, what they may buy, and how much they must pay. It also allowed companies to enter a workers home at any time to search for contraband goods and toss them out on a moments notice if they found so much as piece of forbidden bread.

    A free market allowed insurance companies to collect premiums from customers for years, and then cancel the policies the moment a claim is made. A free market allows insurance companies to price out the cost of litigation versus the cost of paying for treatment and choose the least expensive option.

    There is no such thing as free market when it comes to healthcare. A free market depends on the freedom to choose; I don’t want to drink soda, I don’t want to wear khakis, I don’t want to ride motorcycles. Nothing forces me to purchase those items. But I don’t want to die, I don’t want to suffer with unset broken bones, or suffer from disease; I don’t want my children to die or suffer either. There’s no choice when it comes to healthcare.

    If you understood the first thing about economics or government, then you would know that. It’ no wonder John’ jibberish makes sense to you. The Republican war on education has scored another victory.

    1. RTC – if you want to talk ancient history that is your privilege, but that is not the case now. Unions have killed people, destroyed lives, ruined businesses, cost businesses money, consumers money, etc.

  5. Can I form a corp tomorrow against government corruption;
    and then go shoot anyone corrupt (it ain’t a “tax law”)?

    I’m just sayin……….

    SYG now seems minuscule!

  6. “More to the point, Hobby Lobby’s political and religious allies would if given the power to do so impose their beliefs about zygotes on the rest of us. It’s not as though a Supreme Court decision providing an exemption from the relevant provisions of the Affordable Care Act will create some sort of truce in the culture wars, or convince the Christian Right to live and let live with the wicked citizens of this sinful society. Their extremist position on abortion and contraception is, after all, just a subset of a more generalized hostility to feminism and the very idea of sexual or reproductive rights.

    Laws aside, the new conservative Christian gospel of “religious liberty” as representing a right to wage cultural counterrevolutionary war is a particular challenge to Christians who do not share Christian Right views–who aren’t convinced the prophetic role of the Church should be identified with premodern notions of sex and gender, or is best discharged by fighting to bring back the bourgeois paradise of 1950s small-town America. So it’s not just unbelievers who are puzzled and dismayed by Hobby Lobby. Those who ask “WWJD?” and can’t imagine the Son of God fighting to protect corporate rights are largely silent witnesses of all the Christian Right celebrations over this decision.”

  7. Interstate highways aren’t a monopoly.

    Social Security is not a crime.

    Smoking is against the law in public places (now);
    but could be argued against (because a “new” religion is based on

    the deity of tobacco)

  8. Jim22;

    Taking contraceptives/birth control is not against the law;
    but this inane decision seeks to make it so.

    Separation of Church n State also means corporations simply Can Not enforce their religious beliefs on the ranks.

    Allowing anyone to break all law (except for taxes)- based upon (purported) beliefs is insane! The Mormon religion teaches that lying for the Church is okay (hence Perjury by Pitten’s because he gives 10% to the sect is now ?legal?)

  9. See Jim22: There you go again. There is no such thing as a govt monopoly, on healthcare or anything else. This is what we get when children are spoonfed hatred for all things governmental by their parents.

    BTW, the S. Ct has found that religious belief did not allow states to segregate blacks, did not allow restaurant owners to deny equal treatment to blacks, or allow business to withhold health insurance from married women because the bible said they were inferior to their husbands. Hobby Lob is bad law.

  10. Nick: Communism, as instituted by the Soviets, China, and North Korea may have failed, but nearly every socialist and social-democratic country is doing better than America. Ever hear of a place called Germany?

    Jim22: People who don’t fear unbridled free-markets more than govt don’t understand them. That’s usually because they haven’t felt the full weight of the brutal effects of unregulated capitalism. In the case of the economic collapse at the end of the Bush administration, my guess is that you didn’t have property that plummeted in value due to the incredible number of foreclosures, and that you weren’t a member of the labor force either. From the ideas you espouse here, such as they are, it figures that John’s nonsensical rant would resonate with you.

    By the way, how’s that gas fired turbine for the Chinese coming? You seem to have a lot of time to spend here with such an important project on your hands. Of course, it’s only a coincidence you first started appearing here around the time spring semester was wrapping up.

  11. LaserDLiquidator – “Where and when does Pandora’s box close?”

    If the Supremes had voted the other way the same “slippery slope” argument could be made. If the govt. can force someone to pay for something that goes against their religious beliefs what stops the govt. from forcing more and more things that they think we need to buy? Yes, we are taking a chance with either side but I will choose the free market since I get to vote with my dollars instead of being forced into another govt. monopoly.

  12. Karen;

    What is incongruous, are your suppositions on issues not entered into banter.

    Making certain items against the law (such as your radical examples);
    doesn’t obliterate and entire sect.

    The issues are, one can argue many issues are contrary to one’s belief;
    because the law doesn’t “presume” mindsets – other than as stated.

    Wherefore – certain sects that hold life (in any form) sacrosanct;
    could argue that they can’t exterminate bugs in a tenants house

    as such would violate their religion.

    Where and when does Pandora’s box close?

  13. jim, That’s because you think w/ your head, not your heart, like socialists. Communism has failed, but the socialists idea will not die.

  14. What always boggles my brain is that there are people that fear the free market more than they fear a govt. run monopoly. That will never make sense to me.

  15. John, Well put. I will sit at the pub with you. RTC’s only argument is to just proclaim what you wrote is jibberish, wait that is first-class jibberish so he must be really serious. He also seems to think he is so much older and wiser than any of us here. He refers to me as kid, to make himself feel better and puff out his chest but he has no clue of how old I really am. It makes me laugh so I take what he has to write with a grain of salt. The part that must really kill the progressives is that they don’t have the Constitution backing them. To them it’s jibberish.

  16. Colin Powell Makes The Case For Universal Health Care

    “We are a wealthy enough country with the capacity to make sure that every one of our fellow citizens has access to quality health care,” Powell said at the Prostate Cancer Survivors Celebration Breakfast in Seattle. “(Let’s show) the rest of the world what our democratic system is all about and how we take care of all of our citizens.”
    “I am not an expert in health care, or Obamacare, or the Affordable Care Act, or however you choose to describe it, but I do know this: I have benefited from that kind of universal health care in my 55 years of public life,” the former Secretary of State continued. “I think universal health care is one of the things we should really be focused on. Whether it’s Obamacare, or son of Obamacare, I don’t care. As long as we get it done.”

    1. Max-1 – I lost all confidence in Powell after he came out in support of Obama. For a man who has lived at the public teat all his life he does not have much to say.

  17. At the expense of sounding like a “Socialist Liberal”…
    … Single Payer Universal Health Care covers everybody, for le$$!

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