This morning, at just after ten o’clock, a wave of hibernating progressives were awoken violently from their slumber, a federal court at long last issuing a ringing affirmation that, if the rule of law is to mean anything, congressional legislation must be restricted to its plain meaning. As David Harsanyi reports over at the Federalist,
Judge Griffith wrote that “the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.” The law unequivocally, and more than once, stated that the federal government would only subsidize insurance plans in states that opted to create such marketplaces.
In plain English, then: There is nothing in the text of the Affordable Care Act that permits the federal government to subsidize health-insurance plans sold through federal, and not state, exchanges. Consequently, the Obama administration has been acting illegally since January.
Contrary to insinuations from the Left, the court did not base today’s decision upon a “glorified typo” or upon a minor mistake made within a broadly legible statute, but instead upon the plain meaning of the law itself. The text, says the mastermind behind the case, Cato’s Michael Cannon, is “clear, uncontradicted, and unambiguous” — its intentions corroborated throughout. His co-architect, Jonathan Adler, agrees. “The burden is on the government to explain why it may depart from the text,” Adler explained on a conference call this morning. In court, the government “couldn’t identify any contemporaneous statements” or legislative affirmation to support the notion that its authors had merely erred in their language. In consequence, he concluded, “it didn’t meet that burden.” When Politico’s Blake Hounshell asks sarcastically, who the “staffer” was who “made the drafting error in the ACA?” the correct answer, then, is “Congress.”
Which is to say that words have meaning and governments are not permitted to change them on a whim. Nor, for that matter, is the executive branch authorized to subordinate the rule of law to its political ambition. That Congress’s plan did not shake out how it would have liked is no doubt greatly vexing for it. But it is not sufficient warrant for the White House to rewrite the law. Yes, the federal government has been surprised at how many states have declined to establish exchanges. Nevertheless, as Ramesh Ponnuru observes, that the majority of states have elected to behave in a manner that many in Congress neither predicted nor like does not imply a “drafting error” so much as a lack of foresight — of a piece, perhaps, with the administration’s heartfelt conviction that the more speeches Obama gave, the more popular the law would become.
“We conclude,” the court’s majority opinion held, “that appellants have the better of the argument: a federal Exchange is not an ‘Exchange established by the State,’ and [the relevant section of the law] does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges.” The majority rejected, too, the idea that the word “State” was ambiguous. “Nothing in the law,” the majority opinion observes, “requires interpreting ‘established by the State’ to mean anything other than what it plainly says.” Presumably, then-senator Ben Nelson, who withheld his vote until he was promised that the exchanges would be run locally, would agree.
As for charges of “activism,” the court was clear on its role, reserving a sizeable portion of its opinion to the topic:
We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.
During both oral arguments and in his demurring opinion, the sole dissenting justice effectively took two positions: First, that it would be bad for the government if it could not do as it wished — thus delivering what the (decidedly non-conservative) law professor Gerard N. Magliocca characterized as “an interpretation” that serves as “not much more than a statement that the consequences of reading the law as written would be terrible, thus it should not be done”; and, second, that the plaintiff’s motivations were impure. Taken together, this argument amounts to whining that the case had been brought by citizens who disliked the legislation they believed to be illegal — a peculiar tack for a judge to take. Why a plaintiff brings a case has nothing whatsoever to do with that case’s merits. Likewise, that it may yield an outcome that conservatives like is immaterial. That it may increase premiums is irrelevant. That it may affect the next election is neither here nor there. What matters is whether he’s right.
What happens next? Legally, Adler isn’t sure. The Obama administration’s most likely response will be to appeal the case to en banc review (meaning it would go before the whole court) and pocket the automatic stay that this would yield in the interim. Adler seemed mildly skeptical that this will work. “It’s not clear that this case is en banc-worthy,” he said. “We should not assume such review is automatic.” Perhaps. But if it is worthy, the odds would appear to be in the administration’s favor. The review would be heard before all of the court’s active judges and the senior judges on the original panel. As such, as Talking Points Memo’s Sahil Kapur put it, “Reid’s nuclear option, which put 3 new Obama-appt judges on the DC Circuit, could save Obamacare.” “Remember,” Kapur tweeted, “WH can seek en banc ruling in Halbig and it’d be cast by 8 Dem-appt judges and 5 GOP-appt judges.” After that, the only recourse is the Supreme Court. Whether it would take the case is anybody’s guess.
As is its wont, the Left was quick to trade discussion of legal principle for discussion of political outcome — a perverse instinct. “If people lose [their] subsidies” because Halbig is upheld, Adler noted, “it’s because the courts ruled that those subsidies are — and always have been — unlawful,” and because the Obama administration “never had the authority” to promulgate them in the first instance. “Halbig,” he added, “did not cause those effects; those are the effects of the Affordable Care Act.” Clearly, this is true.