The Corner

Characterizing Halbig

Jonathan Chait cheers the D.C. Circuit’s decision to review the Obamacare tax-credit case en banc because he assumes that the court, dominated by Democratic appointees, will rule the way liberals want. Here’s how he characterizes the lawsuit and the issues it raises:

The lawsuit is a wildly tendentious argument that, based on an extremely narrow reading of one ambiguous passage in the health-care law, people in states with federal-run insurance exchanges should be ineligible. . . . Since the logic of the lawsuit is so ludicrous only a wildly partisan Republican jurist would ever accept it, it stands zero chance of success.

Since Chait is just repeating a point he’s made before, I’ll do the same thing by quoting a post of mine

As Josh Blackman points out, most of the liberal judges who have sided in the end with the administration’s position have not said that it is simply obvious that the text of the legislation authorizes tax credits in states where state governments did not set up exchanges. They have said that the text is ambiguous and given the administration the benefit of the doubt. Some of these liberal judges have gone even further, and rejected common liberal claims that the legislative history of Obamacare clearly shows that Congress intended to make tax credits available on the federal exchange.

Judge Gregory’s ruling in the Fourth Circuit that the tax credits should keep going in all fifty states included these comments: “[T]he court is of the opinion that the defendants have the stronger position, although only slightly.” “There can be no question that there is a certain sense to the plaintiffs’ position. If Congress did in fact intend to make the tax credits available to consumers on both state and federal Exchanges, it would have been easy to write in broader language, as it did in other places in the statute.” “[T]he court cannot ignore the common-sense appeal of the plaintiffs’ argument; a literal reading of the statute undoubtedly accords more closely with their position.” “Both parties offer reasonable arguments and counterarguments that make discerning Congress’s intent difficult.” “The Act’s legislative history is also not particularly illuminating on the issue of tax credits.”

I prefer Judge Griffith’s ruling for the D.C. Circuit to Judge Gregory’s, but Judge Gregory’s showed a much better grasp of the issues than a lot of its fans.

“Wildly partisan” and “ludicrous” seem to me words that better fit the liberal commentariat’s approach to the lawsuit than the lawsuit itself.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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