Paul Barrett’s article on the impending Halbig v. Burwell Supreme Court hearing is fascinating, if for no other reason than to read Barrett’s twisted logic. Here’s a prime example of Barrett’s twisted logic:
Read literally, the law provides subsidies for policies purchased on state-run insurance exchanges, not those run from Washington. The problem with that language is that only 14 states have set up their own exchanges. Republican politicians refused to go along with Obamacare, meaning that residents of 36 states have to seek insurance on federal exchanges.
Barrett apparently isn’t familiar with the concept of federalism. The original ACA mandated that states expand Medicaid. The Supreme Court rejected that, telling the federal government that it doesn’t have the right to tell states what they have to do. The term is called commandeering the budget. The only thing the federal government can do is entice states into choosing to do something. That’s usually achieved by shipping them money if they do what the federal government wants.
Since the Supreme Court rightly decided that the federal government couldn’t force states to expand Medicaid, why would anyone think that they could force states into building their own health insurance exchanges?
Charged with interpreting Obamacare, the Internal Revenue Service concluded that Congress couldn’t have intended to gum up the statutory machinery with this state-versus-federal distinction. In the normal course of judicial business, courts defer to agency readings of ambiguous statutory verbiage. If I were justice-for-a-day, I’d uphold health reform on this basis: It’s pretty clear what Congress was trying to do, and the experts at the IRS deserve deference. Next case!
That’s startling illogic. First, why would the IRS conclude that “Congress couldn’t have intended to gum up the statutory machinery with this state-versus-federal distinction”? The legislative language is clearly written. As the chief architect of the bill, Dr. Gruber certainly knows what the legislative intent was. In Dr. Gruber’s own words, the goal was to “squeeze” states into creating their own health insurance exchanges.
Next, the thought that this verbiage is ambiguous is questionable. In tape after tape, Dr. Gruber verified that that phrase means what it said. Since there isn’t anything ambiguous about the legislative language, it isn’t necessary for the IRS to render its opinion on that language. Further, the IRS hasn’t earned the right to get the benefit of the doubt.
The Obamacare challengers disagree. They contend that the state-exchange language isn’t ambiguous. The justices, they argue, lack authority to rewrite an important piece of legislation. If sloppy lawmakers wish to see their handiwork repaired, according to this view, they have to do it themselves. (With Republicans now in control of both chambers of Congress, of course, the notion that a revised version of Obamacare would find its way back to the president’s desk seems facetious.)
That’s the heart of the Democrats’ dilemma. The thought of Republicans having the right to negotiate a settlement that includes their ideas along with clearly writing in the Democrats’ preferred language on subsidies frightens the left. Unfortunately for Mr. Barrett, that isn’t justification for keeping the bill intact as the Democrats wish.
There’s no question that Republicans would willingly rewrite the bill to extend subsidies to people buying insurance through HealthCare.gov. It’s just that they’d insist on including some of their priorities in the rewritten ACA. Democrats hate the thought of that because this was supposed to be their bill. This was never supposed to have substantive Republican input.
Unfortunately for Democrats, the Founding Fathers wrote that fight into the Constitution.