A NATION OF LAWS

 

The DC Circuit Court recently handed down a 2 to 1 decision in a case entitled Halbig v Burwell.  That decision sent shock waves through the Beltway because it ruled that anyone who receives health care through an exchange established  by the Federal Government and not by a state is not eligible for and should not receive a Federal subsidy in the form of a tax credit or other relief.  "Section 36B plainly makes subsidies available in the Exchanges established by states," wrote Judge Thomas Griffith, who was joined in the majority decision by Senior Circuit Judge Raymond Randolph.

 

The  ACA was purposely designed to make the states the portals whereby "ObamaCare" was delivered.  Confining the subsidies to qualified individuals who purchased their health insurance through a state created "Marketplace " was a deliberate effort to create incentives for the states to participate, as those who conceived and wrote the law intended.  The language is as the court noted, plain and unambiguous leaving little to no confusion as to its intent. 

 

36 states however, refused to establish an exchange thereby requiring the Federal government to step in and create a Federal Exchange.  As a result, 4.7 million Americans who enrolled through the Federal exchange and who have been receiving subsidies due to an IRS ruling which turned the plain language of the statute on its head, may down the road lose this assistance.  This loss is estimated to  increase the cost of their coverage by a factor times four or greater and would gut "ObamaCare" to the bone. 

 

 A joint investigation of the House Oversight and Ways and Means Committees found this rule, which the working group tasked with developing regulations for the ACA believed to be contrary to the language of the law, was written at the insistence of political appointees in Treasury and the IRS and in collusion with officials of HHS.  

 

 

An hour after this decision was announced the Fourth Circuit Court in Richmond arrived at an entirely opposite  decision unanimously in an almost identical case named King v Burwell.  This division by Appellate Courts is seen as an automatic path to the Supreme Court ( SCOTUS) for final determination.  The White House in an attempt to offset this possibility  moved to have the three Judge DC Court decision reviewed  en banc or by all 11 Judges, three of whom were recently named to the court by the Obama administration.  Two other cases await decision in other circuits.

 

Judges Griffith and Randolph however have identified and elevated a core issue in these cases, that rises above  the clear language of the law and now haunts it along with other ghosts.  The main issue now is the sovereignty of the Legislative Branch to write laws in plain language and not have the Executive  or Judicial branches change their meaning via regulation, executive order or opinion. 

 

Ironically Halbig now resides in the same constitutional domain as Speaker Boehner's law suit against the President  where we are facing basic questions.  Who in this Constitutional Republic has the sole responsibility to make law, enforce law and interpret law?  The confusion that these questions insinuate lie at the heart of the larger constitutional crisis this President and this Attorney General has put the country in. 

 

The defenders of "Executive legislation" will probably insist that they are not legislating at all and will instead focus on the word "establish" and argue that when a state demurs  in "establishing" an exchange , they are simply asking the Federal Government to "establish" one for them so that in reality it is not a matter of ownership but rather of methodology that arrives at the same end. 

 

Don't laugh, Eric holder tried something similar in trying to make the District of Columbia  a state without going through the process of amending the Constitution.  Nor should any one forget all of the Presidents lies about keeping your health plans which were later explained as not being as specific as they should have been. 

 

They will also attempt to defend the notion that it was the intent of Congress, or in this case the Democrats in Congress, to make sure that subsidies were available for all even when the record will not sustain that point of view. 

 

For example Jonathan Gruber, an MIT economist who was instrumental in developing the law and who has bragged that " he knows more about the law than any other economist" said  at least twice in 2012 that "What's important to remember about this is if you are 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's a blatant enough political reality that states will get their act together and realize there are billion of dollars at stake here in setting up these exchanges.  But, you know, once again, the politics can get ugly around this."

 

Now Gruber is shamelessly changing his story because the political and fiscal strong arm tactics towards the states failed and is saying that it was a typo or a "speak-o you know like a typo". Such is the "ugly" politics of ObamaCare, which is after all the law of which Nancy Pelosi famously said "we will have to pass it in order to see what's in it"! 

 

Every day it seems a little clearer that the "sausage" the sausage makers made in this law is not even made of meat and is truly inedible.  Upholding Judges Griffith and Randolph will cause great confusion and hardship but upending the separation of powers is a far greater and lasting calamity to the Republic.  When one or more of the branches decide to escape from the tree it means that both branch and tree will perish.  Given all of this the only real fundamental issue for the next election will be the questions... are we still and do we want to be... a nation of laws? Or are we satisfied in not being who we used to be?

 

ERLANDSSON