Thoughts On Halbig

HALBIG!!!! - Kirk screaming Khan - Meme Generator

 

There were two major Obamacare rulings scheduled to come out this year…and both ended up coming out within hours of each other on Tuesday.

In Halbig v. Burwell, the D.C. Appeals court ruled that the subsidies in the Affordable Care Act were intended only for exchanges established by states…thus excluding millions of participants in the Federally run exchange. Hours later, the 4th Circuit Court of Appeals, in King v. Burwell, declared virtually the opposite.

The legal arguments have been going on for a long time, and there are a lot of great discussions, some which are linked from Nicholas BagleyMichael CannonJonathan Adler, and others that will take you through the circuitous legal arguments.  If you are really interested, this podcast with Mr. Bagley and Mr. Adler could be fruitful for your search to understand more about the debate.

But here are my brief takes on the results of both cases:

1. The Halbig decision is a major boost to the momentum of the case of PPACA opponents.

Despite the 4th circuits ruling taking the steam out of the excitement over Halbig, this has to be a major victory for Misters Cannon and Adler, who were two of the earliest proponents for a case attacking the legal justification for subsidies in the Federal exchanges.  Even in the 4th circuit ruling, the court admits the litigants had a fairly reasonable cause to bring the suit, because the text of the law is quite clear that the subsidies are only for state-run exchanges.

This is key for the following reason: it now serves as an impetus for the Supreme Court to take up the case.  Although many liberals and others are arguing that because Halbig is likely to lose in the D.C. court on en banc session it will remove some of the justification for the Supreme Court to take up the case, that doesn’t by itself remove the legal and logical conflict of the case.

This doesn’t insure that the case will be resolved by the highest court in the land…but it increases the probability greatly.  Make note there are two additional cases also working their way through the District courts.  All this from a case where Mr. Adler once remarked he thought the chances of ultimate legal success were very, very low.  Not bad, all things considered.

2. Liberal arguments about ‘activist’ and ‘politicized’ judges are silly and naive.

Liberals howled today when the Halbig ruling was released, calling it a ‘highly politicized ruling by activist conservative judges’.

They yet were silent when the 4th circuit, in a ruling that relied highly on political arguments to make their case, ruled the reverse.

Furthermore, liberals are now relying on the en banc review of the case in the D.C. court, precisely because it is political.  The reason liberals are so confidant there is because of the large Democrat advantage in that court overall.

I think we can go back and forth about politicization of the courts, and which judges are activist or not.  But to rely on that  for your legal understanding of the case is simply naive.  Both sides have legitimate legal arguments, based in long-standing jurisprudence.  This is actually a complicated and difficult case…and to avoid giving credence to either side is being unfair.

3.  The ambiguity in the law weakens the government’s case far more than the litigants.

If you read the two rulings today, what you see is the D.C. court relied highly on the actual text of the PPACA.  Its argument was that the text was quite clear that the state exchanges were supposed to benefit from subsidies, while the Federal exchange would not.

In the 4th Circuit ruling, they rely heavily on what the law implies.  They don’t as much rely on the true text of the law itself.  Also note that the 4th circuit struggled to find a contemporary statement from Congress during the debate that clearly stated they wanted subsidies on all exchanges…which in my mind, greatly weakens the government’s case as well.

This is not to say the 4th circuit was incorrect as far is jurisprudence is concerned. Mr. Bagley makes this argument in a piece from Greg Sargent:

As Bagley explains it to me, the core distinction is whether you are arguing that “Congress didn’t really mean what the statute said,” or whether you are arguing that “what the statute says doesn’t actually mean what you think it means.” The former, Bagley says, is a losing argument. But that is not what proponents of the law are arguing. As noted above, the statute does not clearly say that those on the federal exchange don’t get subsidies. Therefore, the question is not, “what does the statute say” — that is not actually clear — but “what does the statute mean.”

The D.C. court also referred to this ambiguity.  But they made what is (to me, at least) a more sound argument: that although there is some ambiguity, there is absolutely no clarity in what the law implied.  And if the implied intent was uncertain, and the textual intent quite clear…you should rely on the form that is clear.  No?

In fact, if you go back to the discussions during the Obamacare debate…there were a few discussions about limiting the Federal exchange subsidies.  Also recall: Democrats presumed that all states would be forced to expand Medicaid, and almost all states would create exchanges.  The necessity of a Federal exchange was a backstop, and no more.  I think the argument that Congress clearly, indisputably intended for subsidies to be available on all exchanges has dubious factual merits.  But that is moot; 4th circuit agreed with that argument anyway.

Just to close on this point; how tenuous was the government’s argument that the 4th circuit accepted today?  Their ruling states it quite clearly:

“the court is of the opinion that the defendants have the stronger position, although only slightly.”

That is not the statement that one would hold as a bedrock of certainty.

4.  Politically, this causes a problem for both parties. 

For Democrats, this continues the general public opinion that the ACA was written incompetently, had severe problems in implementation, and to this day remains on shaky ground.  Most Americans are not going to dig into the weeds on this; they simply know that courts are ruling both ways, which makes the entire system appear shaky at best.

For Republicans, this is no slam dunk either.  For example, if Halbig becomes the law of the land, won’t that place enormous pressure on Republican governors to establish exchanges?  At least 5 million people will lose Federal subsidies if the court ruling goes into effect.  In this environment, can GOP Governors simply ignore those people?  And remember, even without this onslaught of complaints, GOP governors were already accepting Medicaid expansion in one form or another.  I find it highly unlikely that the GOP could simply ignore the political pressure on this.

5. All of this was caused by the incompetence of Congress.

When Nancy Pelosi said, “We need to pass it to find out what is in it”, THIS is what she meant.  Today, in Halbig…we found out what is, and isn’t, in the Affordable Care Act.

A careful proofreading and understanding of the plan would have resulted in people realizing the contradiction that government was literally, in textual form, preventing the Federal government from providing the same subsidies as the states were allowed to.

Now, liberals are arguing what the intent of the law was.  That is a fair argument, but generally, the safest way to understand what was intended in a law?  Is to clearly state that intent within the law.

That was not done here.

The rush to passage, the inability to allow public comment, and the negligence of Congress in failing to read their own bill led to this.  Simple as that.

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Couple points in conclusion.

First off, I respect a lot of people, many named above, that have varied views on the results in this case.  Clearly I am on one side of this as far as the legal argument goes, but I think that most of those on the other side are honest participants in the debate.  I fully stipulate that both sides have legitimate legal and logical arguments for their position.

That, in turn, is what makes cases like these so hard.  There is simply no right answer.  It is thoroughly possible that Congress wrote the bill, in the literal sense, not to provide subsidies to those on the Federal exchange.  It might even be true they intended that result.

What is also possibly true is, at the very same time, they intended for everyone to have access to those very same subsidies.  Simply put, I don’t think those that voted on this bill understood the full extent and connotations of the items they were voting on.

The rest of us should be wary of attacking one set of jurists over the other as well.  These courts were put in this terrible position because of the incompetence of Congress; therein lies the blame.  That these judges now have to play Solomon ultimately is not their fault.

One final point: as a physician, this entire train wreck is horrible for our patients.  Congress committed an act of malpractice by not clarifying these issues before passage.  Even if Halbig is overturned (the result I expect and predict), that doesn’t really truly solve the problem, because the law remains ambiguous on this and numerous other issues.  We really should demand better from our political leaders, and hold them to account when they make such enormous blunders. I doubt that will happen however.

The Band-Aid Presidency

bandaid

 

Last night, in the most classic way imaginable, the Obama administration dumped a 800 lb lump of coal into the stockings of liberal America on the eve of the Christmas holiday.

The Administration announced that any person who had their health insurance cancelled late this year are no longer obligated to legally abide by the individual mandate, the central taxation component of the Affordable Care Act.  Additionally, these same people could satisfy the mandate requirement by purchasing catastrophic insurance alone, which previously was not considered sufficient to satisfy the mandate requirements.

The argument that the administration is making is ironic in so many ways.  They argue that the individual mandate, arguably the most important cog to the workings of Obamacare, is a ‘hardship’ to millions of Americans.  Furthermore, they are arguing that because of this hardship, they will simply delay that part of the law.

Think about the legality for a second:  President Obama is issuing a hardship exemption for something the Supreme Court has defined…as a tax.

Can you imagine the fun a Republican President can have with that power?

Let us also remember that this invalidates virtually every Democrat and liberal argument against a deal to avert October’s congressional shutdown.  Let us not forget that Senators Ted Cruz and Mike Lee put a proposal on the table to avert the shutdown if the administration simply agreed to a 1 year delay to the individual mandate.  Yesterday, Barack Obama did just that…proving that much of his stance on the shutdown was political theater, nothing more.

In the larger picture, this type of policy change largely defines the entire Obama Presidency. The pattern is as follows:  Obama and liberals propose a policy that, any common sense would tell you, cannot function in the real world. They pass this policy, often distorting the facts to the American public to get their support.  Once passed, they all of a sudden realize the idiocies contained in their plan, and rush to distance themselves from the plan they were recently advocating.  Once the policy becomes active, they realize that reality is more powerful than ideology, and thus, look for any and all ways to get themselves out of the mess they created.   And they use every ‘Band-Aid’ measure possible to cover-up the mess they have created.

The Band-Aids are piling up, and it does not only refer to health care.  Look no further than foreign policy this.  Obama’s Syria ‘Red line’ policy is a perfect example.  Obama talked a good game, but then realize that there was no way to enforce his red-line in the real world.  He quickly ran away from that policy, only to end up with a policy that, ironically, strengthened the power of a man Obama said was ‘evil’, Bashar Assad.

If you want to go further back, the Obama stimulus often had many of these characteristics as well. They passed statutes for ‘shovel-ready’ projects, and later realized there was no such thing.  They then pumped out the money, regardless of effect, to lackluster consequences.

Think of the fallacy of this latest Band-Aid on Obamacare.  The administration is arguing that they have imposed a hardship on at least 5 million Americans who lost their health insurance because of Obamacare.  So, to help these people, they are going to exempt them from the individual mandate.  However, these same people argued during the shutdown that any delay of the individual mandate would be catastrophic to the functionality of the entire ACA system.

Furthermore, the hardship claim is dubious.  Is Obama actually saying that it is more a hardship for people to lose their insurance and have to purchase it on his own exchange, than the hardship of forcing the previously uninsured to dig deep in their pocketbooks to purchase that very same insurance on the exchanges?  He is saying the previously uninsured have no burden of hardship as well?

Another liberal fallacy also dies: the argument that these were ‘substandard’ insurance policies.  Obama has now stated it is o.k. for people to move to catastrophic insurance, when the majority of this cohort had comprehensive insurance prior to Obamacare coming into effect.  In other words, Obamacare diminished  the quality of health insurance plans in America, and Obama is not legitimizing that change.

Each of the policy changes are chinks in the armor of Obamacare; that armor is now thin and rusting. This is a virtual universal delay of the individual mandate for 2014, no matter how liberals spin it.  They will never politically be able to argue that those that lost their insurance because of Obamacare bear more hardship than the uninsured do, and thus, they will be forced to exempt all Americans.  Ted Cruz wins the policy debate.

Even worse, this fixes nothing long-term.  This is a classic Obama ‘Band-Aid’.  Sure, it theoretically stops millions of people from being required to pay approximately $95 in tax penalty this April. But the real issue is not the tax, but the health care exchange.  By exempting all of these people, the administration makes the entire insurance system much less financially stable.

Insurers who were already dubious of the administration’s competence on this are now outright furious at being lied to, time and again.  They fear this will further push the risk portfolios of their insurance plans to the extreme, and thus, will increase their costs. That further increases cost pressures on health insurance premiums across the board, increasing costs for everyone. The Obamacare upward bending of the cost curve continues.

The ‘Band-Aids’ are all for show.  Ultimately, the problem is that the law itself was inherently broken.  These temporary measures actually fix nothing in the system. They are a political attempt at cover.  But nobody can protect Democrats from the onslaught of public anger that is going to arise when they realize what the ACA does, when the Band-Aids finally come off.