July 23, 2014 Leave a comment
Just wow. It is hard to imagine a more extreme case of judicial activism than what came out of the DC Circuit Court yesterday. In the Halibig case, two Republican-appointed judges basically argued that the ACA intentionally included the seeds of its own destruction. And chose to argue this rather than the lights-years far more obvious interpretation that there was simply a drafting error. Whatever the opposite of Occam’s Razor is, this is it. The dissent on the 2-1 decision, which Drum quotes extensively from here, completely eviscerates the majority opinion
Their conclusion is that Congress deliberately withheld subsidies from federal exchanges as an incentive for states to set up exchanges of their own. On this point, Judge Harry Edwards was scathing in his dissent:
Perhaps because they appreciate that no legitimate method of statutory interpretation ascribes to Congress the aim of tearing down the very thing it attempted to construct, Appellants in this litigation have invented a narrative to explain why Congress would want health insurance markets to fail in States that did not elect to create their own Exchanges. Congress, they assert, made the subsidies conditional in order to incentivize the States to create their own exchanges. This argument is disingenuous, and it is wrong. Not only is there no evidence that anyone in Congress thought § 36B operated as a condition, there is also no evidence that any State thought of it as such. And no wonder: The statutory provision presumes the existence of subsidies and was drafted to establish a formula for the payment of tax credits, not to impose a significant and substantial condition on the States. [emphases are Drum's]
It makes little sense to think that Congress would have imposed so substantial a condition in such an oblique and circuitous manner….The simple truth is that Appellants’ incentive story is a fiction, a post hoc narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.
There’s no evidence that Congress ever thought it needed to provide incentives for states to set up their own exchanges. Certainly they could have made that clear if that had been their intention. As Edwards says, this claim is simply made up of whole cloth. In fact, he says acerbically, the entire suit is little more than a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act “:
Don’t worry, though, writes Ezra, no way the SC is going to go along with this:
The Halbig case could destroy Obamacare. But it won’t. The Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar…
This is plainly ridiculous. The point of Obamacare is to subsidize insurance for those who can’t afford it. The point of the federal exchanges is to make sure the law works even in states that can’t or won’t set up an exchange.
For Congress to write a law that provides for federal exchanges but doesn’t permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn’t allow cars, bikes or buses to travel on them…
For Halbig to unwind Obamacare the Supreme Court would ultimately have to rule in the plaintiff’s favor. And they’re not going to do that. By the time SCOTUS even could rule on Halbig the law will have been in place for years. The Court simply isn’t going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar.
For five unelected, Republican-appointed judges to cause that much disruption and pain would put the Court at the center of national politics in 2015 and beyond. It would be a disaster for the institution. Imagine when the first articles come out recounting the story of someone who lost their insurance due to the SCOTUS ruling and then died because they couldn’t afford their diabetes or cancer treatment. Imagine when every single Democrat who had any hand at all in authoring the law says the Court is completely wrong about what the law meant. Imagine when every single Democrat runs against the Court.
Similar “don’t worry” take from Emily Bazelon. This case is going to the full DC Circuit, where most seem confident wiser (and Democratic-appointed) heads will prevail. Bazelon also nicely takes to task the textualism approach of the majority opinion:
Please. This is not about deferring to Congress. It’s about reading a text so myopically that you miss its larger meaning. More from Gluck: It “does a disservice to textualism and all those who have defended it over the years—turning it into a wooden unreasonable formalism rather than the sophisticated statutory analysis that textualists have been claiming they are all about.” The IRS lets people get subsidies when they sign up for health insurance, whatever the type of exchange, because this is what federal agencies are supposed to do: Choose the most plausible reading of a law, the one that fits with the consensus understanding of it. That’s how regulations are made. And once an agency has made its choice, courts are supposed to go along, unless it’s clear that the agency really blew it. Which is hardly true of granting subsidies to people who sign up for health insurance—the basic mechanism of Obamacare.
And, finally, Drum makes the point that in the event this truly absurd argument somehow gets five votes from the Supreme Court, the politics for conservatives become really, really tough. It’s one thing to prevent a benefit from coming into being. It’s quite another to yank the health insurance away from literally millions of Americans. Those stories of the 40-year mom of four who can no longer get her chemotherapy will be politically devastating:
So what’s the political reaction? The key point here is that people respond much more strongly tolosing things than they do to not getting them in the first place. For example, there are lots of poor people in red states who currently aren’t receiving Medicaid benefits thanks to their states’ refusal to participate in Obamacare’s Medicaid expansion. This hasn’t caused a revolt because nothing was taken away. They just never got Medicaid in the first place.
The subsidies would be a different story. You’d have roughly 6 million people who would suddenly lose a benefit that they’ve come to value highly. This would cause a huge backlash. It’s hard to say if this would be enough to move Congress to action, but I think this is nonetheless the basic lay of the land. Obamacare wouldn’t be destroyed, it would merely be taken away from a lot of people who are currently benefiting from it. They’d fight to get it back, and that changes the political calculus.
And I’m going to close this long post by just lamenting on how truly sad I find it that two judges on the second most important in the country can write an opinion of such pathetic intellectual merit and such transparent partisanship that it takes not a law degree, but simply a high school education to see through it. This makes Bush v. Gore look like a magisterial legal decision.