Monday’s Supreme Court ruling in favor of Hobby Lobby was a minor hiccup to the success of Obamacare (ACA) but the most serious threat to the groundbreaking law yet is still alive and well a few blocks away from the Supreme Court in the D.C. Circuit Court of Appeals which is expected to rule any day now on Halbig v. Burwell a case which lost in the U.S. District Court for the District of Columbia in January.
The challengers claim that the law does not allow tax credits to help pay premiums to be offered on the federal exchange saying that the wording of the law only allows the credits to be offered through state operated exchanges.
Judge Paul L. Friedman in ruling against the challengers called the argument “unpersuasive” and noted that it contradicted the purpose of the law which is to “provide affordable health care to virtually all Americans.”
“Such an interpretation would violate the basic rule of statutory construction that a court must interpret a statute in light of its history and purpose,” Friedman wrote in his ruling.
The three judge panel considering the case in the Appeals Court is not as friendly to the ACA as Friedman was, of the three only one was appointed by a Democrat with the other two being appointed by George H.W. Bush and George W. Bush. Both have expressed some level of doubt about the legality of the federal exchange offering the credits.
No one paid much attention to this challenge at first because there is no evidence that the Democrats who wrote and passed the law ever intended to block the federal exchange from offering those credits, the only reason for the federal exchange originally was to back up the state exchanges. After the Supreme Court ruled that the states could not be required to establish the exchanges the role of the federal exchange was expanded and became the only option available to the residents of the 34 states that chose not to provide for their citizens.
“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph, a George H.W. Bush appointee told defenders of the law during oral arguments.
Judge Thomas B. Griffith, appointed by George W. Bush, did not openly display hostility as Randolph did but he did tell government attorneys that they had a “special burden” to show that the language of the law “doesn’t mean what it appears to mean.”
“The text of the statute makes clear that the state establishment of an Exchange was never viewed as a condition for the availability of tax credits,” said a brief filed by the architects of the law.
The White House has declined to comment on the case but it is believed that should the panel rule against the law, the administration will request an en banc ruling, a re-vote of the full Court where the odds are more favorable with 7 judges appointed by Democrats and only 4 Republican appointees.