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.

Obamacare’s Debacle Denialists: The Sebelius Hearing Version

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I have, both here and on social media, talked a lot about the denial the left is suffering from when confronting the realities of the train wreck that the Obamacare implementation has become.

Today’s hearing with Health and Human Service Secretary Kathleen Sebelius was a perfect example.

As the person in charge of this implementation, you would presume that she would have the most up-to-date information on the program.  That she would be able to quickly and promptly answer where in the process the repair of the exchange website we are.  And, that she could tell us what the legal standard for the law is.

You would be wrong on all counts.

To put it succinctly, Sebelius’s testimony also turned into a train wreck.

But let us give her credit.  Sebelius started the day by taking full responsibility for the website’s failures.  Good, right?  The only problem is, she spent the rest of the day trying to convince the hearing members that it wasn’t her fault, but everyone else’s.  She primarily blamed the contractors for not telling her the truth that there were problems with the site; that is, of course, now documented to be false.  They have documented that they were not provided the access or authority to test the site fully, and that authority only resides at HHS.

But it gets worse.  When questioned about the websites security measures, she could not confirm that it was ever tested for security leaks.  Again, to the contractors credit, they documented that they sent a memo to Sec. Sebelius in the end of September stating this fact…and yet HHS did little or nothing to insure the security of millions of Americans’ data.

Sebelius then made what I thought was going to be the most remarkably stupid comment of the day (but wasn’t) when she claimed…wait for it…that the website has never crashed.   She claimed,  “It is functional, but at a very slow speed and very low reliability.”  But as the graphic at the top of this post shows, the site was not functional during her testimony.  You would think she would have checked before going out there and made this ludicrous statement.

As if things couldn’t get worse, Sebelius was then asked why she didn’t go to the Washington, D.C. exchange to get her own insurance.  She claimed that because she is a Federal employee it would be illegal for her to do so.  The problem?  That is completely and factually incorrect, as the graphic from the HHS site shows:

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In other words, the HHS Secretary doesn’t know that the law she is trying to implement would allow her to join the D.C. exchange, as her own HHS website clearly shows. You cannot make this level of incompetence up.

After all that, you wouldn’t think that Ms. Sebelius could worsen this debacle; you would, of course, be wrong. During the exchange asking her about the legality of her joining the D.C. exchange, her hot mic caught this little tidbit:

Rep. Billy Long (R-Mo.) asked her to answer, “yes or no,” whether she’d be willing to drop her federal employee health coverage and buy insurance in the exchanges if she could.

“If you can, will you?” he said.

Sebelius claimed that she thought it would be illegal for her to use the exchanges — but that’s not actually true.

Then Rep. Henry Waxman (D-Calif.) made a unanimous consent request so he could ask a question out of turn. Sebelius turned to a colleague and said, “Don’t do this to me.” Those words were caught on her microphone.

Well, frankly, who could blame her?  I don’t want Obamacare to do this to any of us.

But the line of the hearing still hasn’t been mentioned.

Rep. Greg Harper (R-Miss.) asked Sebelius repeatedly whether President Barack Obama was responsible for the troubled rollout of the health-care law that has left HealthCare.gov, the website where consumers are supposed to purchase insurance, largely dysfunctional.

Sebelius repeated that she and the Department of Health and Human Services were ultimately responsible. This led to a back-and-forth between the two, in which Harper tried to pry the answer he wanted out of her before his time for questioning expired.

“While I think it’s great that you’re a team player and you’re taking responsibility, it is the President’s ultimate responsibility, correct?” he said.

“Well, you’re clearly, uh, whatever,” Sebelius said. “Yes. He is the President. He is responsible for government programs.”

Let me give you a little hint folks: if you are testifying in front of Congress, the body representing the American people, don’t ever respond to a question with the term “Whatever”.

The entire hearing was a debacle, and did nothing to support the claim of the left that the Obamacare implementation is in competent hands.  If anything, it gave more support to the argument that the Obamacare debacle denialist brigade is still in charge.

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