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The Halbig Freakout

Today, a federal appeals court read the law as written. Panic ensued.

Today, in the case of Halbig v. Burwell, a federal appeals court read the law as written and ruled that Washington may not subsidize health insurance plans bought by people in states that have not set up Obamacare marketplaces. Judge Griffith wrote that “the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.”   The law unequivocally, and more than once, stated that the federal government would only subsidize insurance plans in states that opted to create such marketplaces.

Though a blow to Obamacare, what happens next is unclear. The left immediately offered their own take on the matter:

There were those who lamented a fictional drafting error.


This is, of course, untrue.  As the plaintiff’s lawyers point out, entitlements and subsidies are regularly tied to state participation — this includes Medicaid, SCHIP, and other health care tax credits. The idea that dealing with a drafting error is undermined by the legislative history of Obamacare and the arguments of proponents. Read Jonathan Adler and Michael Cannon here.

There were those that accused Republicans being horrible human beings for refusing to confuse health-care markets and taxpayer-funded subsidies.



Then there were those who failed to comprehend what the word “activism” means.

When a court is faithful to the text of a law that Congress passes and government enacts, we do not have an activist court, we have a court doing its job. An activist court might be one that divines intent or retroactively assigns it, as the Roberts court did with the Individual Mandate. But Democrats inability to foresee the consequences of their own legislative language is not the same as intent. Though, perhaps another court will fix this.

Meanwhile, all this angst is probably unnecessary. Lawlessness won’t be stopped by a single district court. The 4th Circuit doesn’t care what law actually says and ruled that subsidies do apply to federal exchanges.

And the administration, as is often the case, doesn’t care what anyone says:


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