In the latest legal battle over ObamaCare, sensible observers are having what can only be described as a crazy-pills moment. It was bad enough that conservatives of all stripes (wacko and non-) last month rallied around an absurd reading of the Affordable Care Act to defend a ruling that struck down one of the law's key provisions. Now a new argument is being floated to protect that ruling that manages to eclipse its nuttiness, revealing the intellectual and moral bankruptcy of the conservative cause.
In last month's ruling in Halbig v. Burwell, two members of a three-judge panel of the D.C. Circuit Court of Appeals, using one instance of ambiguous wording in the ACA's text, ruled that the the bill does not authorize the federal government to funnel subsidies to states that had declined to establish their own health care exchanges. If allowed to stand, the ruling would have devastating consequences for the millions of Americans in more than 30 states who would be stripped of their health care coverage.
There is, however, some good news. The Obama administration has asked for an en banc hearing — that is, a hearing before the D.C. Circuit as a whole. The panel's extremely weak opinion has no chance of surviving an en banc hearing if it is granted. And since the 4th Circuit Court of Appeals rejected the argument accepted by Halbig, there would be no lower-court split for the Supreme Court to resolve, making it much less likely that the nation's highest court would take the case.
In a preemptive strike, Adam J. White argues in the Wall Street Journal that the case isn't important enough to merit en banc review. His argument has been endorsed by a key architect of the latest challenge to the ACA, Case Western University law professor Jonathan Adler. According to White and Adler, this case does not meet the standard of "exceptional importance" required by Federal Rules of Appellate Procedure for an en banc rehearing.
To restate these arguments is to refute them. The panel's holding would throw the American health insurance market into chaos. It would lead to avoidable suffering — and in some cases death — for a significant number of Americans. It would severely damage the most important social welfare legislation passed by Congress in several generations. If that isn't a case of "exceptional importance," what is?
The argument is also a monument to bad faith. If the entire D.C. Circuit vacates the Halbig ruling, it is certain that Adler and his colleagues will immediately rediscover the importance of the case, and ask the Supreme Court to review it.
The attempt to deny the importance of Halbig, however, is instructive. The ad hoc legal war against the ACA shows staggering blindness to consequences, treating literally life-or-death issues as if they had no greater import than a high school debate tournament.
Now, sometimes legal rules produce bad consequences. The application of the Fourth Amendment might allow a violent criminal to escape punishment. But in that kind of case, the value of the tradeoff — protecting against unlawful searches and seizures — is clear. The opponents of ObamaCare can claim no such tradeoff, since the principle being advanced is that isolated passages in statutes should be given hyper-literal readings even if they produce insane results.
Indeed, even Halbig supporters seem to realize that this principle is insufficient grounds for denying health care coverage to millions of Americans. The Halbig litigation is not just based on the smarmy and callous argument that people should lose their health care coverage because of a drafting error. Instead, many supporters have argued that Congress actually intended for the federally established exchanges not to work, to ensure that states would set up their own.
As New York's Jonathan Chait put it, referencing the classic Seinfeld episode, Halbig supporters aren't merely arguing that people should be stripped of their insurance because the Trivial Pursuit card says "Moops" instead of "Moors" — they are arguing that the Moors were actually called the Moops.
The problem with this attempt to blame Congress is that it is absolutely absurd. With the exception of one consultant who has repudiated this view before and after the fact, nobody involved in writing or enacting the legislation believed that tax credits would not be available on the federal exchanges. If Congress wanted to coerce the states into establishing their own exchanges, it wouldn't have kept the withholding of tax credits a secret.
Most importantly in this context, the argument is nonsensical on its face. Why would Congress bother to establish a federal backstop if it didn't want it to work?
Supporters of the Halbig litigation can't blame Congress, which intended for the exchanges to work. And while they might treat millions of people being denied insurance coverage as a game, the courts and the American public shouldn't.