[quote]
Halbig v. Burwell is arguably the Affordable Care Act’s greatest existential threat since the Supreme Court case decided in 2012.
On July 22, the U.S. Court of Appeals for the D.C. Circuit issued a ruling against the federal government, which threatens health insurance subsidies in over thirty states.
Without subsidies, health reform could fall apart. That makes this court case a bigger deal than GOP efforts to repeal Obamacare. There have been over 40 repeal votes since the law was passed, but they’ve always been toothless: even if repeal made it through Congress, President Obama promised to veto any legislation that dismantled his signature legislation.
But this court case is out of Congress’s hands — and out of President Obama’s, too.
[/quote]
Think this makes it to the supreme court next year and what do they do with it. Do they ignore section 36B because it makes the law unworkable or do they decide that it’s not up to the courts to fix congressional mistakes. The argument is basically that congress didn’t mean what wrote and we should strike that sentence from the law.
From the opinion.
[quote]
The government argues that we should not adopt the
plain meaning of section 36B, however, because doing so
would render several other provisions of the ACA absurd. Our
obligation to avoid adopting statutory constructions with
absurd results is well-established. See Pub. Citizen v. U.S.
Dep’t of Justice, 491 U.S. 440, 454-55 (1989). Under this
principle, we will not give effect to a statute’s literal meaning
when doing so would “render[ the] statute nonsensical or
superfluous or . . . create[] an outcome so contrary to
perceived social values that Congress could not have intended
it.” United States v. Cook, 594 F.3d 883, 891 (D.C. Cir. 2010)
(internal quotation marks omitted). But we do not disregard
statutory text lightly. The Constitution assigns the legislative
power to Congress, and Congress alone, see U.S. CONST. art.
I, § 1, and legislating often entails compromises that courts
must respect. See Barnhart v. Sigmon Coal Co., 534 U.S. 438,
461 (2002). See generally John F. Manning, The Absurdity
Doctrine, 116 HARV. L. REV. 2387, 2434-2435 (2003)
(warning that an overbroad application of the absurdity
doctrine “contradicts the rule-of-law objectives implicit in the
Constitution’s strict separation of lawmaking from judging”).
We therefore give the absurdity principle a narrow domain,
insisting that a given construction cross a “high threshold” of
unreasonableness before we conclude that a statute does not
mean what it says. Cook, 594 F.3d at 891. A provision thus
“may seem odd” without being “absurd,” and in such
instances “it is up to Congress rather than the courts to fix it,”
even if it “may have been an unintentional drafting gap.”
[/quote]
The Affordable Care Act (regardless of whether you are a fan or not) was between 900 and 1000 pages long and was definitely rushed through Congress. (FWIW – I am an independent voter – and I have mixed feelings about the ACA and most other political issues.) I have heard through one very reliable source that it was barely proofread before being put to a vote. There is no way that the Act itself could be internally consistent. The usual bandaid for poorly written laws is a set of gap filler regulations (which don’t get voted on – but do get litigated to death). My understanding is that the regs for the ACA are over 20,000 pages long. Could anyone really know what the rules are? Do we have a law on the books that is not understood, in its totality, by even one person?
Personally, I don’t want the courts figuring out what the legislators were too busy to do. They are supposed to be referees – not rule makers.
In the end, I don’t think it’ll make much of a difference.
Let’s say a future Supreme Court decision sides with the Republicans. But it will only force the states to setup exchanges so as not to lose the subsidies.
By that time the law would have matured that no state would want to be left without the subsidies.
Kinda like highway funds. States have to follow Federal mandates or lose highway funds. But who wants to lose money?
Come to think of it, a decision banning subsidies to poor people in states that refuse to setup exchanges might create some electoral reshuffling.
Poor people will realize that they’re being cut off and think WTF. They will then have to mobilize to force state legislators to setup exchanges to restore the subsidies.
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