Halbig vs Burwell

The DC Court of Appeals handed down it’s decision in Halbig vs Burwell, an ObamaCare challenge. The crux of the challenge is that the law, as written, says that people on exchanges established by a state can get the subsidies, people using the Federal exchange established by Uncle Sam cannot. This was done (they said at the time) as an incentive to encourage states to set up their own exchanges, and it was estimated that only a small number of knuckledragging states would fail to do so (so screw them)… (OK, so the last part was my words for their actions).

But when 34 states failed to set up their own exchange, it caused a problem. Millions of people don’t want to have their promised subsidies “taken away.” So, the HHS said “well, it really means any exchange, including the Federal one.” The DC Court of Appeals just said “No, state means state.” And, as an added bonus, just a few days ago the HHS itself said that in the ACA, “State” means “State,” not “state and/or territories.” A bit more than a week ago, Obama’s law professor said it would likely turn out this way.

This is potentially a nuclear bomb in the heart of the law. Next stop, en banc review on the (packed?) court, or the Supreme Court. Only downside is finding out how the Rs will manage to shoot themselves in the foot with this news (with the media’s willing help, of course.)

UPDATE: the 4th Circuit just ruled the other way on the same thing. Wow, that was timely.

Another good analysis.

Another one from Forbes. If upheld, it would cancel the subsidies, AND the tax for not buying insurance (i.e., kill the mandate).


8 thoughts on “Halbig vs Burwell

  1. So I wonder if Nancy Pelosi has learned yet that “One needs to find out what’s in a Bill BEFORE one passes it” yet? Knowing her DumbAss, probably not.

    On a Related note; it turns out some Activist Judge told SENATOR Ron Johnson of Wisconsin that his Lawsuit to stop him from putting his Staff Members on the Obamacare Rolls lacked “Standing,” even though that part of Obamacare was written SPECIFICALLY for Congress Members and their Staffs. Gee Judge, then WHO does that section of Obamacare applies to, the Cheyenne Nation?

    I smell SCHANDENFREUNDE wafting through the air!

    • The ACA was designed specifically to create chaos and ultimately “fail” so as to create the premise for full-on nationalized medicine. The left has been talking about this for decades, and Obama has said that, “We may not get there right away…” or some similar, meaning we may not get to total government control and ownership of the medical industry all in one step, that it was going to take several steps. The ACA’s only purpose was to serve as one of those steps, and the more it “fails” the more it works. Get it!

      The more it frustrates, angers, outrages and demoralizes people, the better it’s working. So far it’s done pretty well, don’t you think?

      Schadenfreude? No, Young Grasshopper; The last laugh is on you.

      • I think you are right, in part. It was designed to fail, but not so fast, so spectacularly, on HIS watch. If it failed under his successor, preferably a Republican, they could blame it on the Rs easily, and push for whole-hog single-payer. Failing so fast it might (we can hope) tend to discredit the state technocrat run government takeover idea. The last laugh has yet to be determined.

      • Indeed, this does feel a bit like a camel’s nose. It’s reminiscent of the camel’s nose that the Brady gun grabbers used to talk about.

  2. “If upheld, it would cancel the subsidies, AND the tax for not buying insurance (i.e., kill the mandate).”

    So whether I am subject to a particular Federal tax is dependent which State I reside in and upon what the State has done or not done.
    Or if we take it as it was sold, the State I live in is the determining factor in whether I am subject to a Federal *penalty* for failing to perform a specific act (buying approved “insurance”).

    So much for “equal under the law”.

    • Yup. which is why the Obama Administration will push for an en blanc review of the DC circuit, because they had a chance to change the rules in the Senate to only need a simple majority vote to approve judges, and they got on three hard left robes appointed, so rather than a fair left-right 4-4 balance, it’s now 7-4. Could be ugly If they go to en blank, it’ll take months at least. Then an appeal, then more time to get it before the Supremes, then the wait for arguments, then the decision, by which time Captain Zero will be out of office and they can (a) blame any problems on the Rs, and (b) the longer a program runs the more people get addicted to it, so the larger the hard-core supporters will be.
      Hopefully (though unlikely) there will be an expedited appear to the SCOTUS, and they can hand down a final decision later this year (very unlikely) or next (possible, but more likely). I want to be optimistic, but I don’t have a good feeling about it. If it gets decided on the text of the law, it’ll stand. If it gets decided by judicial activists pushing an agenda, letter of the law be damned, we’re screwed.

    • Another one. A video of Jon Gruber, an MIT economist that was one of the chief architects of both “RomneyCare” in Mass AND ObamaCare. Skip to 31:24 for a question on what happens if states don’t set up exchanges. His response is, paraphrased, that he thinks the Fed are dragging their feet to “squeeze the states to do it,” because if they don’t act then that state’s residents will not be eligible for the subsidies, but they will still paying the taxes to support it, and he hopes it’s a big enough club to beat them into compliance.

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