The Halbig ruling: one brief, shining moment for the rule of law
Tuesday’s Halbig v. Burwell ruling touched off a panic on the Left, as the unexpected 2-1 ruling against ObamaCare looked as though it might be a death blow to that tortured, unpopular, blatantly unconstitutional program. By the end of the day, liberal pundits were advising their readers to calm down, promising them that ObamaCare would weather this storm.
Those pundits are right, or at least they’re calling the odds correctly. We no longer live in a constitutional republic that respects the rule of law. If we did, ObamaCare would have died at the Supreme Court before it had a chance to do any damage. There are too many pitfalls awaiting the Halbig decision, too many ways for it to die before it escapes our systemic Temple of Doom. Tuesday might prove to be an important milestone on the long road to ObamaCare repeal, but it will not be allowed to strike a death blow.
The Halbig ruling is still significant, no matter what ultimate fate awaits it. For one brief, shining moment, the old republic was back. A three-judge panel of the powerful D.C.. Circuit Court of Appeals ruled 2-1 that a law actually meant what it clearly said, the Leviathan State should be bound by the clear language of the law it passed, and anyone who dislikes the result should direct their ire at the power-hungry politicians and staffers who wrote the Affordable Care Act. Golly, maybe the Democrats actually should have read it before they passed it!
And this particular “oversight” would seem like a stake to the heart of ObamaCare, because let’s face it: this isn’t a health care reform, it’s a massive socialist wealth redistribution system. It’s a pile of regulations that adds an immense government burden to the cost of health insurance, making it nearly impossible for what politicians refer to as “working Americans” to afford coverage… combined with a system of lavish subsidies that force other people to pay much of that exorbitant cost. (Not all of it, which is why many ObamaCare customers find themselves facing “sticker shock” price increases even with the subsidies.)
In other words, this was a strategy to radically increase the cost of an important product, then hook everyone in the Middle Class on government subsidies so they could afford to pay for it. The Left’s long-desired subjugation of the Middle Class was at hand! They would never be truly “independent” again. People pulling down sixty grand a year would become wards of the welfare state, with thousands of dollars in leverage available to ensure their political cooperation with statism. (If you want to see how that works, wait until there’s serious energy behind a small-government proposal, and the modified defensive whine from the Left insists that the first dollar of spending cuts must come from police, firefighters, teachers… and ObamaCare subsidies.)
But it turns out that buried in the thousands of pages of the Affordable Care Act were provisions (repeated more than once) specifying that only insurance purchased on a health-care exchange set up by a state government would be eligible for subsidies. Insurance purchased on the billion-dollar bugtastic Healthcare.gov website could not be subsidized. In fact, the Affordable Care Act didn’t even empower the federal government to create such an exchange at all. And since the majority of ObamaCare customers, spread across 36 states, were using the federal exchange, this language in the law meant most of those buyers would be forced to - gasp! - pay the inflated premiums themselves.
Contrary to liberal caterwauling on Tuesday, the Halbig decision didn’t “increase” the price of insurance by a single penny. It just changed who would be paying the bills. It’s as clear a demonstration of the old leftist “free stuff” sleight-of-hand – in which “free” bunnies are magically conjured from the bottomless top hat of tax revenues – as you could ever ask to see. Suddenly most of the people benefiting from insurance policies would be forced to - horror of horrors! - pay the bills themselves. They would actually see what Barack Obama and his cronies did to the health care system. What a disaster!
To shoot down another talking point: no, this wasn’t a clerical error or typo in the Affordable Care Act. The restriction on subsidies was introduced deliberately, as part of an effort to bully state governments into setting up ObamaCare exchanges. ObamaCare is a mountain of lies and deceptions, written during a series of hasty maneuvers designed to keep political opponents (and the American people) confused and off-balance. Simply requiring the states to create exchanges would have spooked too many state electorates, and brought strong opposition from certain governors, not all of them Republicans. Therefore, the illusion of freedom was introduced. It’s the same illusion Obama was peddling when he lied, thirty or forty times, about how everyone would be able to keep their insurance plans if they liked those plans. It was a massive scam designed to make ObamaCare look voluntary. It was going to sell itself. It would be so good that every state government, and every insurance buyer, would rush to participate!
But there were fears that state governments might decide to exercise their nominal freedom and opt out of the ObamaCare exchange system – fears that proved to be quite accurate, as 36 states would go on to exercise that option. The con artists who created ObamaCare therefore slipped in the subsidy cudgel, reasoning that even if some states chose not to create exchanges at first, they would swiftly be forced to do so by their angry constituents, who would notice people in other states receiving juicy subsidies to purchase their overpriced insurance plans. This was all supposed to be a legislative mousetrap that would make the freedom to opt out of the exchange system purely hypothetical. At some point during the mad dash to stuff ObamaCare down America’s gullet during a brief window of opportunity when Democrats held both houses of Congress, some of these dolts forgot about the little subsidy bomb they left lurking in a bill none of them read before voting on it.
So here we are, with a D.C. Circuit Court of Appeals panel ruling, quite reasonably, that the law says what it says, and if Congress now believes the law was written incorrectly, our carefully balanced system of government provides a simple remedy: Congress can vote to amend the Affordable Care Act. But of course, ObamaCare’s defenders – desperately trying to protect a deeply unpopular law while both it, and the President it is named after, are imploding – don’t want to follow the proper procedure for amendment, because it would be a political disaster for them, with a good chance of repealing all, or most, of the Affordable Care Act. And that’s as it should be. The ACA is a fraud. It doesn’t work. It doesn’t do what its authors claimed it would do. Many of its funding mechanisms have been stripped away. President Obama has illegally rewritten it on the fly to keep it alive. The American people deserve a do-over: a second chance to look at health care reform with their eyes wide open.
But no, we can’t have that, so the Halbig decision will be swiftly neutralized, most likely by giving a full court stacked, packed, and racked with Obama operatives a chance to reverse Tuesday’s ruling. Another court, the Fourth Circuit, coincidentally ruled in favor of ObamaCare on the very same topic Tuesday, and their ruling makes clear that the Affordable Care Act was an usurpation of the constitutional order, the very sort of enabling act that our Founders were horrified of. In the Fourth Circuit’s view, the “context” of what ObamaCare’s authors “intended” trumps the clear text of the law itself. More to the point, what they claim today was their intention two years ago is all that matters. The ACA was a writ of unlimited power for the government to force what it decides is “affordable” and “universal” coverage upon the public… subject to such waivers and exemptions as the royal court sees fit to grant, of course. (You would think all those exemptions could stand as a devastating retort to all this blather about “context” and “intentions,” since they’re obvious proof that ObamaCare isn’t making insurance universal or affordable, but logic departed this argument some time ago, and left no forwarding address.)
This is all about politics and power, not the rule of law, so the ACA will continue to say whatever His Majesty declares it says on any given day. The White House immediately announced it would ignore the Halbig ruling even if it stood, which in a better era would appear on Barack Obama’s bill of impeachment, but frankly they’re just being honest about how things work these days. No mere “law” will be allowed to obstruct the imperial President from exercising the powers he has seized. If you didn’t want him to seize those powers, you shouldn’t have voted for him, suckers.
Even if Halbig made it the Supreme Court, it’s highly unlikely that a Chief Justice who has already rewritten the law on the fly to save it would be reluctant to do so again, and we all know the liberal justices will vote in a mindless Borg-like bloc to protect ObamaCare, no matter what is actually written upon its many pages.
We bid farewell to the rule of law long ago; ObamaCare makes for a perfect final epitaph. This is a political struggle now, a clash of powers, in which laws are only selectively invoked by politicians who cannot defend their actions (see, for example, Democrats’ absurd insistence that one passage of a 2008 law they are willfully misreading is an iron barrier against dealing with our border crisis.) When the power elite needs to deflect accountability, it raises the law as a shield and crouches behind it, whining that its hands are tied. But when the elite wants to get something done, the law is no obstacle to their ambitions. Why, it’s foolish to think the words printed on a page, above the President’s signature, could ever restrict his power! Law binds the people, not the State!
With that in mind, the politics of the Halbig ruling are pretty much the opposite of its legal interpretation. If it stood, and those ObamaCare subsidies were shut down, the exchange mousetrap might well snap shut upon state governments, precisely the way ObamaCare’s designers intended. The clamor to implement such exchanges immediately, so that residents of those states could start collecting subsidies, would be deafening. It might well become an election issue that could save a few Democrat seats in November. Imagine barrages of political ads, and angry debate performances, in which the Republican candidate was backed into a corner and force to support the creation of state exchanges… or go on the record as wanting his constituents to pay thousands of dollars more per year for their insurance plans. ObamaCare might end up dying from its Halbig wounds, but it would go down snapping its fangs and slashing its claws.
On the other hand, if the more likely outcome occurs and Halbig is overturned (or ignored), it becomes a powerful election-year issue for Republicans. It’s one more undeniable piece of evidence that ObamaCare is fundamentally incompatible with the American system of government. Sharp GOP candidates can make devastating arguments about how subsidies are used to hide the true cost of the program from the American people. The banana-republic tactics used to beat down Halbig will be fodder for many Republican campaign ads. There’s a lot of other bad news rolling in about ObamaCare; an overturned Halbig ruling will make a nice maraschino cherry atop the sundae of failure.
No matter what happens next, let us savor the one brief, shining moment when the rule of law actually mattered again, the Ruling Class was held responsible for its actions, and Americans were granted a vision of the great republic they have lost. It’s more clear than ever that if we want the republic back, getting rid of ObamaCare is an indispensable first step.