The Revenge of the Badly Drafted Statute

by Reihan Salam

I’ll say right now that I’m not a Halbig guy. That is, I’m more interested in building the substantive case for rolling back and replacing Obamacare than on teasing apart the statute. I have enormous respect for Jonathan Adler and Michael Cannon, both of whom are exceptionally intelligent and public-spirited. But like the University of Chicago’s Will Baude, my guru on all things legal and constitutional, I am (at best) agnostic on whether Halbig is correct. 

What I do find interesting is the possibility that one of the recurring themes of opposition to the health law from the Tea Party right might have hit the mark: lawmakers really don’t seem to have understood what they were voting on. Daniel Fisher of Forbes shares thoughts from Chris Condeluci, a former Senate Finance Committee staffer:

“Congress always intended for the federal exchanges to do everything the state exchanges do, one of those things being the federal subsidy,” said Chris Condeluci, an employment lawyer with Venable in Washington who was tax counsel to the Senate Finance Committee from 2007 to 2010. “I can say, even as a Republican, Congress always intended this, we just didn’t indicate it through legislative history because the process was so screwed up.”

Yale Law School Professor Abbe Gluck does an excellent job of explaining how the process was screwed up in this post from last December. After Sen. Ted Kennedy died and was replaced by Republican Scott Brown, the Democrats lost their filibuster-proof majority and fell back on the blunt tool of reconciliation to smash together the House and Senate versions of the healthcare bill. That left “a very badly drafted statute,” in Gluck’s estimation, with three Section 1563s and the seemingly ironclad instruction to the Internal Revenue Service that it can only issue healthcare subsidies to people who buy insurance on state-operated exchanges.

This doesn’t suddenly mean that I’m cheering the outcome in Halbig. But there is a neat symmetry. If you believe, as I do, that one of the virtues of bicameralism, and the “gridlock” that flows from it, is that it serves as a restraint on partisan majorities when they attempt to advance legislation that does not in fact have deep and durable public support, then Halbig looks something like a tissue rejection. The political chaos that followed Kennedy’s death was a sign to some in Democratic circles that the time had come for Democrats to cut their losses, in light of the apparent lack of deep and durable public support. Yet the president, bucked up by Speaker Pelosi and others seeking a legacy achievement, chose to forge ahead with “a very badly drafted statute,” and here we are, several legal challenges deep with no end in sight.

The reason I don’t seek Halbig as something to celebrate is that, as I argued earlier this week, the challenges facing the Affordable Care Act are challenges that conservatives will also have to face as they seek to reform the health system and other large, lumbering, failing American institutions. And the greatest challenge of all is to build a deep and durable consensus, which reaches out beyond self-identified conservatives to include most moderates and perhaps even some liberals. Conservatives tend to neglect the importance of building a deep and durable consensus to implementing reforms that last, and that’s a problem. I happen to think that as the left falls back into 1979 mode — we’re literally having an argument over whether it is wrong to expect able-bodied adults to work or to seek work in exchange for public assistance — conservatives have an opportunity to win over a broader swathe of the population, including a broader swathe of the young. But realizing this opportunity will will require a greater focus on the demand side of government: conservative neglect of the need for health-system reform gave liberals an opening to pass sweeping health legislation. If conservatives don’t implement conservative reforms that address real problems to the satisfaction of voters, the right will keep finding itself fighting rearguard actions.