““Halbig is definitely a defeat to the administration.
The administration basically has two options. First, it can seek an “en banc” hearing, which is when the court as a whole will hear the case, as opposed to just a panel of three judges. En banc hearings, while they do occur, aren’t common.
But, in a high stakes case like this, I’d estimate the chances are more likely that the court will agree to hear it en banc.
The second option the administration has is to file a petition for a writ of certiorari at the Supreme Court. Generally, though, the Supreme Court waits to have a couple cases on the issue, and then seeks to resolve a split or disagreement.
Just a few hours after the DC Circuit issued its opinion, the Fourth Circuit issued its opinion in King, which reached the exact opposite conclusion. Thus, there is now a circuit split (assuming the administration bypasses the en banc process). With the circuit split, I’d say the odds are good that we will see another ACA showdown at the Supreme Court, this time about the subsidies.
If the DC Circuit decision stands, it will be a devastating blow to the ACA. A central aspect of the ACA was the federal subsidies to entice the millions of people to sign up, which is supposed to make the law financially feasible. Without these federal subsidies, people in the dozens of states that have not yet instituted a state exchange will have to pay full price and would therefore be less likely to sign up, everything else being equal.
In terms of the merits of the cases, to me, Halbig, although the minority position now, is a more consistent decision. King and the other decisions square only if the word “State” is ambiguous in the ACA: it isn’t — the word “State” means exactly that, it does not mean the federal government.
In statutory construction, there’s a doctrine called “Casus Omissus Pro Omisso Habendus Est,” which means that if Congress makes a mistake in a statute, the duty to fix it lies with Congress, not the courts. I think that doctrine applies here.
If the administration wants to allow subsidies in states that don’t have a state-created exchange, then it needs to work with Congress and amend the ACA.
If this goes to the Supreme Court, which it likely will, based on the NFIB decision, I think the Roberts Court would go to great lengths to uphold the subsidies, like it stretched to uphold the ACA as a tax a few years ago.” — Timothy M. Todd, Esq., CPA, Assistant Professor of Law, Liberty University School of Law
Todd’s opinions are his own and do not reflect the position of Liberty University.
“The two contradictory appeals court decisions that cast the future of Obamacare into uncertainty Tuesday morning largely center on a question of intent: When the Affordable Care Act was conceived and drafted, did its creators mean to withhold health care subsidies from people living in states that refused to set up their own exchanges?.
This latest legal challenge focuses on four words in the mammoth law authorizing tax credits for individuals who buy insurance through exchanges “established by the States.” Thiry-six states declined to set up their own exchanges — far more than the law’s backers anticipated — and in those states, consumers have been shopping for health care on exchanges run instead by the federal government. Now the D.C. Circuit Court of Appeals has ruled that these consumers are not eligible for subsidies because, well, they bought their insurance on exchanges not “established by the States.”
This is a tremendously literal interpretation of a small but crucial part of the law, and it’s one that was arguably never intended by its creators. The plaintiffs in these challenges have argued that the ACA always meant to exclude noncooperative states from subsidies as a way of incentivizing those states to create their own exchanges. Supporters of the law — including the Obama Administration — counter that such intent would never have made any sense in the larger context of a law aiming to expand health insurance to as many people as possible.”
“Two U.S. Appeals Courts Tuesday reached opposite conclusions about the legality of subsidies in the Affordable Care Act, a key part of the law that brings down the cost of coverage for millions of Americans.
In Washington, a three-judge panel at the U.S. Appeals Court for the D.C. Circuit ruled that the Internal Revenue Service lacked the authority to allow subsidies to be provided in exchanges not run by the states.
That 2-1 ruling in Halbig v. Burwell could put at risk the millions of people who bought insurance in the 36 states where these online insurance marketplaces are run by the federal government. Judge Thomas Griffith, writing the majority opinion, said they concluded “that the ACA unambiguously restricts” the subsidies to “Exchanges ‘established by the state.’ ”
But within hours, a unanimous three-judge panel for the Fourth Circuit in Richmond, Va., ruled exactly the other way in King v. Burwell – that Congress always intended to allow subsidies to be provided in both state and federally run exchanges.
“It is therefore clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill,” said the decision written by Judge Roger Gregory.
The Obama administration said it will appeal the Halbig decision. The Justice Department will ask the entire appeals court panel to review it, and that panel is dominated by judges appointed by Democrats, 7-4.”
“The Halbig case could destroy Obamacare . But it won’t. The Supreme Court simply isn’t going to rip insurance from tens of millions of people in order to teach Congress a lesson about grammar.
As Adrianna McIntyre explains, the Halbig case holds that Obamacare’s subsidies are illegal in the 36 states where the federal government runs (or partly runs) the exchange. The plaintiffs rely on an unclearly worded sentence in the law to argue that Congress never intended to provide subsidies in federally-run exchanges and so the subsidies that are currently being provided in those 36 states are illegal and need to stop immediately.
The point of Obamacare is to subsidize insurance for those who can’t afford it
This is plainly ridiculous. The point of Obamacare is to subsidize insurance for those who can’t afford it. The point of the federal exchanges is to make sure the law works even in states that can’t or won’t set up an exchange.
For Congress to write a law that provides for federal exchanges but doesn’t permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn’t allow cars, bikes or buses to travel on them.”
“We now have two federal appeals courts that have issued conflicting rulings on a major provision of the Affordable Care Act. Those decisions are not the final word on whether residents of some states will be able to continue receiving financial assistance to buy health insurance. Here are some possible next steps:”