The Corner

Halbig Is Not About a ‘Drafting Error’

The Left frequently misreads the public, projecting its attitudes on everyone else. That is the story of the Halbig ruling and the media reaction to it.

Like a number of commentators, I observed (in Faithless Execution) that the president was violating the Patient Protection and Affordable Care Act (PPACA) by imposing the Obamacare regime of subsidies and taxes on states that declined to establish health care exchanges. I have to say I “observed” this fact, rather than that I “argued” this point, because it is not a contention. The PPACA makes it crystal clear.

The Left now claims that this was the result of a drafting error. Even if that were true, Obamacare advocates would lose, assuming we are still governed by the rule of law. Only Congress can fix Congress’s drafting errors — judges, much less presidents and executive branch agencies, do not get to do this.

But this was not a drafting error at all. The point was to coerce the states into setting up exchanges, and the Left’s premise in structuring Obamacare as it did was its assessment that Obamacare, and especially its subsidies, would be popular. Obamacare turned out to be unpopular, however, and state governors and legislators did not suffer any political blow-back for refusing to help implement it. There was no ministerial drafting mistake; there was a mistaken assumption that the public would rally behind the policy, creating political pressure on state governments. Because statists think Obamacare is a good idea, they figured everyone would be brought around to that conclusion.

I think this happens a lot. About three weeks ago, the Left made much of the fact that the people of Murrieta, Calif., surrounded and turned back busloads of illegal immigrants that the federal government was attempting to process with an eye toward resettling them in the United States. The point of the media attention was obvious: the Left was offended by the reaction of the Murrieta residents, rather than by the government’s abetting of illegal immigration, and calculated that most other people would share that view. As it happens, most people sympathized with Murrieta. So the coverage of this aspect of the border crisis has stopped. The resettlement project is still ongoing, but it is now happening without much press coverage about the outrage of various American communities.

Wouldn’t it be refreshing it progressives would come clean about the drastic changes they’d make in the Constitution’s procedure for enacting law? Statutes would be sweeping, open-ended licenses to achieve one or more of the Left’s agenda items—e.g., everyone must have health care coverage—and it would then be left to the selfless, professional bureaucratic experts to work out the details. There would be no court review and no need to seek legislative modifications from Congress; everything would be done by administrative regulation and executive discretion … as long as the executive was a bien-pensant lefty like Obama.

We don’t have that system—not yet, anyway. So we’re told Halbig is about a “drafting error” and subjected to similar blather about “ambiguity” (where there is none), “plausible constructions” (that are implausible), etc. Obama partisans will continue trying to snow courts into ruling that the PPACA says something it clearly does not say—blather that may well work in the end since the judiciary, too, has become very politicized and party loyalty often counts for more than what Congress has written.

I’d wager, though, that the Left will fail when the case ultimately ends up in the Supreme Court. On the last Obamacare go-round, Chief Justice Roberts behaved abysmally both in shrinking from the Court’s duty to pronounce that an unconstitutional law is unconstitutional and in upholding that law on a theory — it’s a tax — that President Obama, the law’s principal proponent, had expressly disavowed. There was, however, some appeal in Roberts’s main point: Big policy questions in a democracy should be resolved by the political branches, and courts should bend over backwards to resist finding constitutional flaws that overturn these resolutions.

This time around, the Supremes need only do what they did the last time, and what the D.C. Circuit did today: Uphold the law as Congress has written it and explain that if the public wants it changed, it is for their representatives in Congress to change it.


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