In a highly anticipated decision, this morning the D.C. Circuit Court ruled on the Halbig v. Burwell case argued back in March. The decision, which had court-watchers on edge for a better part of a month, was closely watched because of its potential impact on Obamacare subsidies and the power the IRS had to distribute those subsidies. In short, the text of Obamacare only provides for subsidies to be used in state exchanges. The lawsuit argued that this made federal exchanges, established when thirty-six states refused to set up their own exchanges, ineligible for subsidies.
The ruling was a 2-1 decision against the government, with a concurring decision and a dissent. It mostly examined the idea of textualism versus intent by members of Congress. In the concurring opinion, Judge Randolph gets to the heart of the issue by quoting former Supreme Court justice Louis Brandeis in another case:
In the meantime, Justice Brandeis’ opinion for the Supreme Court in Iselin v. United States is controlling: “What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.” 270 U.S. 245, 251 (1926). We held the same in National Railroad Passenger Corp. v. United States, 431 F.3d 374, 378 (D.C. Cir. 2005), citing not only Iselin but also Lamie v. United States Trustee, 540 U.S. 526, 538 (2004), which reaffirmed Iselin’s “longstanding” interpretative principle.
What Justice Randolph is arguing is that, while the courts have the power of judicial review, they can only rule on the language that is placed in front of them. In other words, the courts can’t do Congress’s work for it. The courts must reject the idea of ruling on intent because, with hundreds of members of Congress deciding the fate of a bill, it is impossible to say that each member voting on the law had the same intent.
Liberals will carp that this ruling was made by “Republican judges.” But this is the same court that rejected an earlier challenge to Obamacare on the basis its origination. A lawsuit had argued that since the bill was a tax, it should have come from the House, not the Senate, but the circuit court refused to hear it. So this clearly wasn’t a partisan decision.
Maybe next time, before ramming a bill through, Nancy Pelosi and company will read it before passing it. In the meantime, get ready for the fallout. Depriving the federal exchanges of subsidies is a hammer blow to the core of Obamacare.