The Halbig case: or, the banality of conservative evil

The Halbig case: or, the banality of conservative evil
by Dante Atkins at Daily Kos

http://www.dailykos.com/story/2014/07/27/1316139/-The-Halbig-case-or-the-banality-of-conservative-evil

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Here are the basics behind the case: the Affordable Care Act expands access to health care by allowing states to create insurances exchanges on which private companies can sell insurance plans that meet federal standards. To help ensure affordability, the ACA subsidizes a certain portion of the premium on a sliding scale based on income. If a state either cannot or will not set up an exchange, there are also plans available on a federal exchange.

So far so good, right? Wrong. Because of the fervent opposition to the law, most states with Republican-controlled statehouses opted not to participate by building their own exchanges, and instead watched passively as their citizens became eligible for plans subsidized under the federal exchange. Just one problem, though: the authors of the Affordable Care Act did not seem to anticipate that states would refuse to establish exchanges out of political spite. Consequently, the provision of the Affordable Care Act authorizing the payment of subsidies refers specifically to plans under state-based exchanges, but does not explicitly authorize subsidies to help cover plans sold by the federal exchanges. The IRS issued a regulation that federal exchanges were eligible for premium subsidies. But a group of anti-Obamacare plaintiffs, headed by an attorney from the Federalist Society, argued that because Congress had not expressly mentioned subsidies to plans under the federal exchange, those subsidies were unlawful. And that argument won the first round in the DC Circuit Court, whose panel ruled that regardless of whether Congress intended the subsidies to also be available to plans under the federal exchange, a strict reading of the legislation said otherwise.

The safest and most obvious route to avoid jeopardizing the health insurance of millions of people would have been a technical fix through the legislature to specify that, yes, the federal exchanges are just as qualified for subsidies as those run by states. But this is the House of Representatives we're talking about, where destroying the Affordable Care Act has long been the ultimate goal of a frenzied majority. The House was given a choice between adding a couple of words to the law to eliminate any question about the intentions of Congress, or leaving open a loophole whose exploitation could have a minute chance at destroying the whole system. Guess what they chose.

So, Congress intentionally left a drafting error on the books, just waiting for someone to walk through it—and Michael Cannon at the libertarian Cato Institute did exactly that. As Dave Weigel explains at Slate, it does not matter to Cannon and his fellow ideologues whether the law is working as intended (and it is), or how many people could theoretically suffer if their insurance suffered a massive spike in cost as a result of the premium support subsidies being ruled illegal for the federal exchanges:


Cannon's goal, stated bluntly and frequently, was that Obamacare had to be brought down by any means necessary. States that did not set up exchanges were in a better position to sue the government. Fewer people in the exchanges meant higher overall costs. To insurers, the "death spiral" was an apocalypse scenario; to Cannon, it meant freedom.



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