Wednesday, July 23, 2014

Some Roundups on Halbig and King (the ObamaCare Subsidies Cases)

Abbe Gluck

Much commentary has been posted in the past 24 hours on the Obamacare subsidies rulings.  Here are just a few:

Emily Bazelon comments  at Slate about how implausible it is, as the D.C. Circuit holding would have it, "that Congress included in Obamacare the seeds of its own destruction, giving naysaying governors the power to kill it—without ever saying so."   I have my own op-ed at Politico, arguing that the opinion does a disservice to the credibility smart textualists have been trying to build for years and is not the way that complex laws should be interpreted in a well-functioning democracy. My piece also points out that the D.C. Circuit's reading of the statute contradicts the description of the exchanges by Justices Scalia, Kennedy, Thomas and Alito in the ACA Joint Dissent, which assumed the validity of the federal-exchange subsidies and understood that the statutory scheme depends on them.

Further on the health law academic front, Tim Jost has a post on the Health Affairs blog analyzing the opinion, as does Nicole Huberfeld at HealthLawProfBlog, and Nick Bagley at Incidental Economist. 

Jonathan Cohn, Ezra Klein, and Wonkblog each have posts detailing how no one involved in the drafting the statute or reporting on its enactment over 2009 and 2010 sees any any proof of the story that the challengers are telling about what the ACA means or what Congress intended. As Klein writes:

"For Congress to write a law that provides for federal exchanges but doesn't permit money to flow through them would have been like Congress writing a transportation law that builds federal highways but doesn't allow cars, bikes or buses to travel on them. That was...not what Congress thought it was doing. As Jonathan Cohn writes, 'not once in the 16 months I reported on the formal congressional debate did any of the law's architects suggest they were thinking along these lines.' My experience was precisely the same: architects of the bill underestimated how many states would let the federal government run their exchanges, but they always thought there would be a few, and they always assumed those exchanges would feature subsidies. Everyone in Congress — including the Congressional Budget Office in its estimates of Obamacare's cost — assumed subsidies would flow through federal exchanges."

More to follow.....

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