A long-awaited appellate court decision came down today. The case, Halbig v Burwell, involved a challenge to ObamaCare’s subsidies for lower income enrollees. The law specifies that the subsidies be provided to those who enroll in exchanges established by the states, but when 36 states chose not to establish those exchanges, the federal government created its own exchange for the people in those states and the IRS provided subsidies to those who enrolled via the federal exchange.
Read more here, here and here.
Comments and histrionics are exploding all over the political blogosphere this very minute, but I see no other way the court could have ruled on this case. Sadly, it had to reverse lower court decisions and more sadly, the vote went 2-1.
The language is plain, something even the dissent and those who decry the decision seem to acknowledge. Their argument is that it could not possibly have been Congress’s intent to allow a state’s choice not to create an exchange to subvert ObamaCare. Lets set aside for a moment questions about federalism, states’ rights and other elements of ObamaCare that exist to encourage states to establish exchanges, and consider the mindset that would rationalize such an argument.
For a judge to deny the plaintiff’s challenge in this case, he’d have to do two things:
1 – Presume Congressional intent that contradicts the plain language in the law.
2 – Usurp the role of the current Congress (and future ones, for that matter). It is well within Congress’s power to correct the language that led to this lawsuit and this ruling. No judge should presume to undertake that job – it is not the job of the judiciary to write or correct laws, it is its job to interpret them.
In arguing that the plaintiff’s challenge should be denied, a judge would be showing favoritism and granting primacy to the Congress that wrote the law over the Congress that could change the law if it wished to. I have seen numerous examples of SCOTUS and other appellate court decisions that deferred to the legislative branch, including some that openly suggested corrections should the legislature wish to change a written law to reflect intent or a desired judicial outcome.
A judge that decides the 111th Congress’s intent is more important than the 113th Congress’s power walks the nation down a dangerous path.
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