Two recent unrelated U.S. Supreme Court decisions provide a clue as to how the justices would rule if Halbig v. Burwell gets there—and the news is good.
In Halbig a three-judge panel for the Washington, DC, Circuit Court of Appeals agreed with the plaintiffs: Only states that set up their own health insurance exchange are entitled to federal subsidies to help people in the exchange pay for their coverage. Fourteen states and the District of Columbia did that; the other 36 states did not and so are not entitled to the subsidies.
But Halbig is about more than the expansion of big government; it’s about whether lawmakers who pushed through poorly conceived and drafted legislation must follow the law they passed, or whether an administration can ignore various parts of that law just because the text doesn’t say what bureaucrats want it to.
In other words, Halbig is also about the rule of law.
The Affordable Care Act clearly says that only exchanges created by the states get the subsidies. The Obama administration and the IRS counter that the intent was always to have all states get the subsidies and that other parts of the law substantiate that view. And so the IRS decided to hand out the subsidies anyway.
The DC Court ruled that the language is clear, regardless of what Congress meant, and that the government must abide by the law.
If the debate was only about Obamacare it’s anybody’s guess how the Supreme Court would rule; but the court has voted unanimously 13 times to reign in the Obama administration’s willful and blatant disregard for the law. Halbig could make it 14.
As liberal-leaning legal expert Jonathan Turley recently pointed out, the court has handed down two separate recent decisions that go to the heart of government overreach. One opinion was authored by liberal Justice Elena Kagan and the other by conservative Justice Antonin Scalia.
In Michigan v. Bay Mills Indian Community Kagan wrote, “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” Kagan’s point is a direct challenge to the Obama administration’s effort to rewrite, or reinterpret, Obamacare after the fact.
In Utility Air Regulatory Group v. EPA Scalia writes, “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” Again, Scalia’s comment could just as easily apply to Obamacare.
Would the court’s liberals side with conservatives and strike a blow against Obamcare? Maybe, if Kagan and her liberal colleagues value the rule of law over the entitlement state. Like Congress, the judiciary has a constitutional, as well as self, interest in restraining rogue administrations.