“The end of Obamacare?”
I normally use that graphic as a metaphor for the needlessly disruptive, even harmful effects the Affordable Care Act is having on the American health care system and the millions who rely on it. But the First Circuit Court of Appeals ruling in Halbig v. Burwell (formerly Halbig v. Sebelius) turned the ACA into its own flaming wreck by holding that purchasers of insurance on the federal exchange were ineligible for subsidies, meaning those buyers would be forced to pay the full cost of their new, needlessly more expensive O-care plans.
Some background: When the writers of Obamacare were designing this anti-constitutional monstrosity of a law, it was decided that states would be able to set up their own exchanges, with the federal exchange serving as the “insurance mall” for those that didn’t. To encourage states to create exchanges, it was written into the bill that subsidies for insurance purchases would only be available to those who bought their policies via an exchange “established by the State.” The idea was that pressure from purchasers who wanted those subsidies would force even conservative governors and legislatures to “opt in” to the system.
Trouble was for Obamacare fans, it didn’t work out that way.
Only 14 states set up their own exchanges (and some of those have been such disasters that their states are switching to the federal marketplace). That meant that, under the law, insurance buyers in the federal marketplace would be paying full price for their policies. It also meant that the federal government could not collect the “Roberts tax” (penalties) for not buying insurance, since those taxes were triggered by the availability of subsidies. No subsidies, no tax revenues, which the government was relying on to fund those same federal subsidies. You can just imagine how that prospect thrilled the pols in D.C.:
So the IRS, hearing its master’s voice, suddenly decided it had the power to declare that “established by the State” intended to include the federal exchange, and thus the subsidy money could keep flowing.
Enter Halbig and its argument that, no, the law meant what it plainly said, and then the First Circuit’s agreement.
The reaction on the Left has been amusing, to say the least. Ranging from shrieks of “judicial activism!!” to whines of “it’s just a typo and you know very well that’s not what Congress intended, meanies!”, they want the full, en banc, First Circuit to reverse the ruling. And, if they don’t do it, then, by golly, it’s on to the Supreme Court, where John Roberts will rewrite the law for us! Or something.
That got an awful lot harder to imagine, though, after the Competitive Enterprise Institute last night uncovered video from 2012 in which Jonathan Gruber, one of the key architects of both Obamacare and the earlier Romneycare, point-blank admitted the plaintiffs in Halbig were right:
The key moment starts at minute 31. Here’s CEI’s transcription of the big reveal:
What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.
Per Michael Cannon, Gruber is off on one point, because the “Roberts taxes” are only triggered in states that create exchanges and thus get subsidies. But the core is that this destroys the government’s “congressional intent” argument, because we now have one of the designers saying the limitation of subsidies to state exchanges was the intent of Congress.
Where Obamacare defenders go from here (other than to a bar to drown their sorrows), I don’t know. They can’t give up, because the loss of the subsidies wrecks Obamacare. Can you imagine the reaction when customers on the federal exchange are told they have to pay full price, prices mandated by Obamacare, which was passed solely by Democrats?
I have no idea how the courts will handle this. Assuming the government asks for an en banc hearing, it’s possible the ruling in Halbig will be reversed, thus probably ending the matter, but I’d have to think less so after this revelation. And there is a contradictory ruling from the 4th Circuit, a situation that almost guarantees the Supreme Court would take the case in 2015.
As ST likes to say, stay tuned…
RELATED: More from Reason. The Federalist on Michael Cannon’s revenge. Mr. Cannon himself points out how Halbig frees tens of millions from an illegal tax. Paula Bolyard reports how Mr. Gruber calls the plaintiff’s arguments in Halbig “nutty,” …er… but they’re his own ideas, too. Oops, again. By the way, did you know 91% of fake applicants for Obamacare can get subsidized coverage? Another reason to kill this thing and bury it under a crossroads at midnight with a stake through it.
UPDATE: This is amusing – four ways in which Obamacare defenders have desperately tried to spin Mr. Gruber’s “speak-o.”
(Crossposted at Sister Toldjah)