Halbig v. Burwell: A stunning rebuke of a lawless and reckless administration

Shutterstock

Article Highlights

  • Halbig v. Burwell is a stunning blow to the Obama administration

    Tweet This

  • The Affordable Care Act means what it says.

    Tweet This

  • The Obama administration acted lawlessly, and is now paying the price

    Tweet This

The decision by the U.S. Court of Appeals for the District of Columbia in Halbig v. Burwell, announced Tuesday, is a stunning blow to Obamacare and the Obama administration.

Judge Thomas Griffith's majority opinion ruled that Obamacare -- the Patient Protection and Affordable Care Act -- means what it says. Obamacare subsidies are available to consumers in states that set up state health care exchanges, just as the statute specifically authorizes. But they are not available to consumers in states -- 36 of them -- which did not set up state health care exchanges but allowed federal exchanges there instead, in accordance with the Act. Nowhere does the Act authorize subsidies in such states.

As Judge A. Raymond Randolph wrote, concurring fully in the judgment, “to hold otherwise would be to engage in distortion, not interpretation.” Judge Randolph quotes the words of Justice Louis Brandeis, long a hero in the liberal pantheon, in the 1926 case of Iselin v. U.S.: "What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function."

In this case, however, what the government wanted the court to supply was not omitted through inadvertence, but on purpose. Congress wanted to give the states an incentive to set up their own health care exchanges, and so provided that consumers only in states with state health care exchanges would be eligible for subsidies. But this attempt to bludgeon the states into setting up their own exchanges -- to absolve the federal government of the responsibility for doing so, at which it subsequently showed itself to be incompetent -- but some 36 states declined the invitation (or, if you like, resisted the bribe).

So what did the Obama administration do? Something typical: it acted lawlessly. Subsidies would be paid that were never authorized by Congress. The instrumentality would be the Internal Revenue Service, which in this administration has shown itself entirely capable of politically motivated lawless behavior. But lawlessness may not be the worst of it. This was also a reckless action.

The fact that the statute did not authorize subsidies in states with federal exchanges made the administration’s action vulnerable in court. When it became clear that many states would not set up their own exchanges, the administration could have asked Congress to rewrite the statute.

Undoubtedly this would have required major changes beyond the addition of a clause authorizing the subsidies, since by that time Republicans had a majority in the House of Representatives. But the Constitution's provisions requiring that laws be made by Congress and be faithfully executed by the president were not designed to make lawmaking easy or pleasant.

The administration chose to bet that courts would not read the statute as saying what in fact it says. At the D.C. Circuit, at least, it lost that bet.

The D.C. Circuit's decision is not final; the government may seek an en banc hearing by the entire appeals court or review in the Supreme Court. But some 5 million people are said to be directly and adversely affected if the D.C. Circuit's ruling is upheld. That's the kind of thing that happens when you have a lawless and reckless administration.

Also Visit
AEIdeas Blog The American Magazine

What's new on AEI

AEI Election Watch 2014: What will happen and why it matters
image A nation divided by marriage
image Teaching reform
image Socialist party pushing $20 minimum wage defends $13-an-hour job listing
AEI on Facebook
Events Calendar
  • 27
    MON
  • 28
    TUE
  • 29
    WED
  • 30
    THU
  • 31
    FRI
Monday, October 27, 2014 | 10:00 a.m. – 11:30 a.m.
State income taxes and the Supreme Court: Maryland Comptroller v. Wynne

Please join AEI for a panel discussion exploring these and other questions about this crucial case.

Tuesday, October 28, 2014 | 9:30 a.m. – 12:15 p.m.
For richer, for poorer: How family structures economic success in America

Join Lerman, Wilcox, and a group of distinguished scholars and commentators for the release of Lerman and Wilcox’s report, which examines the relationships among and policy implications of marriage, family structure, and economic success in America.

Tuesday, October 28, 2014 | 5:30 p.m. – 7:00 p.m.
The 7 deadly virtues: 18 conservative writers on why the virtuous life is funny as hell

Please join AEI for a book forum moderated by Last and featuring five of these leading conservative voices. By the time the forum is over, attendees may be on their way to discovering an entirely different — and better — moral universe.

Thursday, October 30, 2014 | 2:00 p.m. – 3:00 p.m.
A nuclear deal with Iran? Weighing the possibilities

Join us, as experts discuss their predictions for whether the United States will strike a nuclear deal with Iran ahead of the November 24 deadline, and the repercussions of the possible outcomes.

Thursday, October 30, 2014 | 5:00 p.m. – 6:15 p.m.
The forgotten depression — 1921: The crash that cured itself

Please join Author James Grant and AEI senior economists for a discussion about Grant's book, "The Forgotten Depression: 1921: The Crash That Cured Itself" (Simon & Schuster, 2014).

No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled today.
No events scheduled this day.