As important as it was, the Hobby Lobby case was not really about Obamacare. It was about freedom of religion, freedom from control by the state, and abortion. The ruling made hardly a dent in Obamacare.
But there’s another little-known case that could virtually disembowel Obamacare, Halbig v Burwell. A ruling by a three-judge panel of the DC Circuit Court of Appeals is expected any day, and it might well go against the administration.
Don’t get your hopes up. The full court, which would probably rule next, is stacked 7-4 in favor of Democratically- appointed judges. Nevertheless, Obamacare defenders are taking the threat very seriously.
The issue involves the grave inconvenience, something this White House specializes in ignoring, and that is: the letter of the law.
The Affordable Care Act clearly states that subsidies to purchase insurance – Obamacare’s heart, which pumps money into the pockets of those who can’t afford insurance – are only allowed on state insurance exchanges. But many states refused to set up exchanges, and so coverage for millions is done through the federal exchange, which was never intended by the law to be a serious player and was not empowered to provide subsidies.
The Obama administration is arguing on the side of creativity and innovation, which I think are normally good things unless you’re talking about the rule of law and its underpinnings, statutes and the Constitution. But these are not serious matters for the Obama administration.
The administration says the rest of the law is structured in a way that shows Congress clearly intended subsidies to apply nationally, whether on state exchanges, federal exchanges, or stock exchanges. Two of three judges on the panel were appointed by Republican presidents, and they seemed skeptical during oral arguments in March.
“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” said one of them.
I wouldn’t predict victory in this for Obamacare opponents, even if the panel goes their way. But then again, I wouldn’t have predicted that Justice Roberts would concoct a cockamamie excuse to save the statute almost exactly two years ago.