By Bill Wilson
Do we live in a nation of laws enacted by our duly elected representatives? Or do we live in a country in which a handful of elites can do as they please with no regard to those laws — or due process for those affected by them? This is the central question the U.S. Supreme Court must answer in the wake of Halbig v. Burrell — the court case that could derail Barack Obama’s socialized medicine monstrosity once and for all.
Forget repealing, defunding or nullifying Obamacare: This is the silver bullet the law’s opponents have been looking for all along. But Halbig is much bigger than that — it’s a fight over the validity of every law passed by the U.S. Congress. Ever.
On July 22, a three-judge panel of the U.S. Court of Appeals for the District of Columbia determined that the Internal Revenue Service (IRS) had exceeded its authority in extending Obamacare subsidies to the thirty-six states that rejected the law’s state-run exchanges. They ruled this way because the president’s law expressly limited the availability of subsidies (and the taxes necessary to fund them) to exchanges “established by the State.”
It’s right there, in black and white.
Obamacare supporters (and many of the administration’s mainstream media advocates) claim Congress intended to make these subsidies available to all states regardless of whether they created exchanges. According to them, a handful of Republican judges are nit-picking the law — trying to sink it on a “technicality.”
Congressional intent is obvious, they add, because Obamacare simply cannot survive without the revenue derived from a nationwide implementation of its insidious “individual mandate.”
Is the “intent” argument valid? Of course not. Consider the words of Obamacare architect Jonathan Gruber when he was asked about the exchanges back in 2012 — two years after the law was passed.
“In the law it says if the states don’t provide them, the federal backstop will,” Gruber said. “The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.”
Pretty cut and dried, isn’t it? Gruber isn’t some sideline commentator, either. He was a paid advisor to the Obama administration from 2009-10. According to The New York Times he was “lent … to Capital Hill to help Congressional staff members draft the specifics of the legislation.” In fact in that article he boasted of knowing “more about this law than any other economist.”
Gruber has now flip-flopped, though, referring to the interpretation adopted by the Court of Appeals as “screwy,” “nutty” and “stupid.”
Which brings us to the heart of the matter: The letter of the law. Obamacare narrowly cleared a Democratic-controlled Congress in 2010 thanks to procedural maneuvering, administrative arm-twisting and glorified bribes. Its margin for error was nonexistent — meaning lawmakers were severely limited in their ability to amend its glaring errors (including the exchange language).
“The law’s architects brought this on themselves,” Bloomberg’s Megan McArdle observed in the aftermath of the Court of Appeals ruling.
For the past four years, Obama’s administration has been desperately trying to reconcile their law with reality — continually making “changes as needed” to its language, in the words of senior Obama advisor Valerie Jarrett. This ongoing, arbitrary rewriting was necessary to make Obamacare viable — and to prevent massive Democratic losses in the 2014 elections due to the consequences of its implementation.
The only problem? Such rewriting is flagrantly unconstitutional.
As much as they may wish it otherwise, Obama and his hundreds of thousands of administrative minions are constitutionally bound to enforce this law as it is written. And the same goes for the rest of the federal code. That means there can be no tax hikes or subsidies in the thirty-six states that explicitly rejected Obamacare’s exchanges.
But this decision is bigger than any one law — or provision of law. If Obama can arbitrarily presume the intent of Congress to suit his ideological or political ends — then what’s to stop future leaders from doing the same? And what’s to stop any American from deciding which laws they will follow?
This ruling will determine once and for all whether America is a nation of laws — or just another failed nation teetering on the edge of anarchy.
The author is a board member of Americans for Limited Government.
