I always expected the Halbig case to end up at the Supreme Court. I’m surprised so many people are surprised they agreed to hear the challenge today.
I suppose this might have been a political decision, i.e. the four conservative justices want a crack at taking ObamaCare down, the four liberals are girding their loins to defend it, and Chief Justice John Roberts picked the wrong time to quit sniffing glue. (A little “Airplane” callback humor, there, folks.)
But look, even the most ideologically rigid Justice sees him or herself as more than just an activist or political operative. There’s a serious legal problem with ObamaCare here – the law explicitly and clearly states that only state-run exchanges are allowed to distribute subsidies, which means all those HealthCareDotGov customers are going to get stuck paying for their own ridiculously expensive “Affordable” Care Act plans. The efforts of goofball ObamaCare architects to explain this language away as “typos” and “speak-os” didn’t convince anyone, as you can tell from the embarrassed silence that fell across them afterward.
Maybe the Court will yet rule to uphold the subsidies – I’m wary of second-guessing any court, much less the Supremes, but I don’t see how that can be done without the most absurd intellectual gyrations, because the law says what it says. Maybe the Justices will agree with the flop-sweating defenders of ObamaCare and agree that the subsidy language was left in the bill by mistake, so the entire machinery of Constitutional government should be temporary disabled while Democrats splash a little white-out on that baby and get rid of the words they don’t like. I don’t see why the Court should permit that, not only because it’s another hole punched in a Constitution that already has far too many holes, but also because the proper machinery of republican government is available to handle the task; the ACA, like any other legislation, can be amended. There should be no special dispensation from the rules governing legislation and amendment just because the people who wrote a given bill dislike the people who currently hold the gavels in the House and Senate.
I always suspected the Supreme Court wouldn’t like the idea of an Obama-packed district court “fixing” the problem by doing away with an eminently logical and well-reasoned three-judge panel decision. I don’t think the liberal Justices really like that idea, truth to be told. They probably want to settle this issue in a way that preserves the legitimacy of the Affordable Care Act, the court system, and government itself. They can hear the muttering about banana republics that grows louder each time Obama rewrites his “signature achievement” on the fly.
Will Chief Justice Roberts rewrite ObamaCare to keep it alive again? Or is he irritated by the political pressures that forced him into making that decision last time, and looking to restore his judicial reputation? And just to get gloom-and-doomy on energized ObamaCare opponents: if the Halbig decision stands, and those federal subsidies get nuked, is that going to kill ObamaCare… or will the subsidy trap snap shut, accomplishing precisely what it was intended to do by the dishonest hucksters who now claim to have forgotten they left it in the bill, forcing many states to create their own exchanges so angry constituents who bought ObamaCare on the federal exchange can get their subsidies? Are there even enough ObamaCare buyers in most states to make that a serious political issue? Is letting ObamaCare die under the Halbig axe an outcome that Americans who never stopped disliking the ACA might see as for the best? Stay tuned.
Update: As more news reports pop up, I think the early reports that the Halbig v. Burwell decision was going to the Supreme Court might have been incorrect, and it’s actually the similar King v. Burwell case they’re reviewing, or more technically an appeal to King v. Burwell. The significance and likely outcomes are the same. I changed the title of the post for clarity, but left the other references intact, with this correction appended.
I’d rather have the name “Halbig” attached to the whole shebang because that’s a unique name whose significance is easily recognized, but I suspect it’s just going to be known as “the ObamaCare case” before too long anyway.