Is ObamaCare a Law?

Liberals keep dismissing challenges to ObamaCare, political and legal, so it’s no surprise they mostly ignored last week’s oral argument at the D.C. Circuit Court of Appeals that could send another case to the Supreme Court. Coming in the week the White House wheeled out its 38th rewrite of the law, Halbig v. Sebelius is even more important for the contours of executive power and the rule of law.

The case asks whether the Affordable Care Act, which limits insurance subsidies to “an Exchange established by the State,” also authorizes subsidies for the 36 exchanges established by the federal government. The courts tend to give the executive branch deference in interpreting ambiguous statutes, but here the Administration is asking the court to declare that the statute unambiguously means the opposite of what the plain language says.

This ought to be a straightforward matter of statutory construction. Democrats put conditions on the subsidies to pressure Governors to join ObamaCare on the familiar U.S. federal-state cooperative model, but they never anticipated lasting unpopularity and opposition. To resolve this political problem, the IRS brushed off the statute and expanded the subsidies to both types of exchanges.

Arguing before a three-judge panel, Assistant Attorney General Stuart Delery pointed up “interpretive tension” among various complex provisions. But he also suggested that reading the text literally would undermine ObamaCare’s purpose and structure of a nationwide system of subsidized health care. Try to parse that one: This is a law that its defenders argue will self-destruct if implemented as drafted by its architects.

Echoing liberal supporters of the Administration, Judge Harry Edwards repeatedly accused plaintiffs counsel Michael Carvin of purely political motives. “What you’re asking for is, come on, put it on the table: Destroy the individual mandate, which guts the statute. That’s what this case is about. There’s nothing hidden about that.”

That’s pretty rich given that the White House has itself gutted the individual mandate for its political purposes. Mr. Carvin represents taxpayers and businesses who would be otherwise exempt from ObamaCare mandates if the subsidies were withheld in their states, and thus will suffer injuries under the unlawful IRS rule. Judge Edwards went on to angrily demand: “Who cares? What difference does it make who sets up the subsidy? . . . You have a provision that says the state’ll do it, the feds’ll do it—what difference does it make who does it?”

Well, the states care a great deal about their rights and responsibilities under dual sovereignty federalism. Taxpayers also have an interest in overturning an IRS rule that exposes them to tax liability harm.

But the larger “who cares?” question turns on fidelity to the law and what obligation if any judges have to salvage an unworkable or badly designed program created by the political branches. As Judge Thomas Griffith ruminated, “If we know a clear purpose of Congress, and they don’t legislate clearly enough to achieve that purpose, is it our job to fix the problem?”

Democrats clearly had the grandiose “purpose” of national health care in mind, among hundreds of other motives in transforming one-sixth of the economy. But their sausage-making was also marbled with flaws, as its multiple administrative rewrites show. Their regrets over their own mistakes do not now entitle them to create statute-editing powers on the fly, which would be the result if the judiciary endorses a President’s power to enforce only those parts of laws he likes.

And would vacating the IRS rule really “gut” ObamaCare? It would surely complicate it. But then maybe more states would set up their own exchanges to get the subsidies. Or the White House could ask Congress to fix the law. President Obama conceded last summer that he favors “tweaks that don’t go to the essence of the law” and “in a normal political environment” he’d ring up John Boehner to negotiate a settlement.

But the President added that Republicans have an “ideological fixation” about ObamaCare, and therefore the ordinary legislative process is too fraught. But the Constitution doesn’t say Presidents can rewrite laws merely because asking Congress to change them would be difficult. The Administration’s real argument in Halbig is that interpreting the law as written would be politically bad so an accurate, faithful interpretation of the statute is out of the question. Judges aren’t supposed to lean on laws to produce partisan outcomes.

The “difference” it makes how Americans can access subsidies is between the faithful execution of the laws and anything-goes political and legal improvisation. As Chief Justice John Roberts famously wrote upholding the insurance purchase mandate, “It is not our job to protect the people from the consequences of their political choices.” It is also not their job to protect politicians from the consequences of their policy choices.

Is ObamaCare a Law? –


Leave a Reply