There's so much evil that we've just come to take it for granted.
If you're familiar with the action film genre, there's a type of conclusion you're likely familiar with: the hero defeats all the villain's henchmen and thwarts his nefarious scheme, leaving him alone, defeated, and without purpose. The hero will say, "give up; it's over." The villain, however—because he's a villain—will refuse to go quietly and seek to cause as much destruction as he can on his certain path to oblivion.
In this analogy, the villain is the conservative movement, and the evil scheme is the repeal of the Affordable Care Act. The refusal to go quietly? Well, that's the Halbig decision handed down by the DC Circuit Court this past week, in which a two-to-one panel ruled subsidies provided by the Affordable Care Act to insurers covering policyholders under the federal exchange were not lawful.
If the United States had anything resembling a sane political system, the case of Halbig v. Burwell would not have existed at all. It does, however, because of the unfortunate combination of imprecise language by the authors of the Affordable Care Act on one hand, and the destructive psychopathy of the right wing on the other.
More below the fold.
Here are the basics behind the case: the Affordable Care Act expands access to health care by allowing states to create insurances exchanges on which private companies can sell insurance plans that meet federal standards. To help ensure affordability, the ACA subsidizes a certain portion of the premium on a sliding scale based on income. If a state either cannot or will not set up an exchange, there are also plans available on a federal exchange.
So far so good, right? Wrong. Because of the fervent opposition to the law, most states with Republican-controlled statehouses opted not to participate by building their own exchanges, and instead watched passively as their citizens became eligible for plans subsidized under the federal exchange. Just one problem, though: the authors of the Affordable Care Act did not seem to anticipate that states would refuse to establish exchanges out of political spite. Consequently, the provision of the Affordable Care Act authorizing the payment of subsidies refers specifically to plans under state-based exchanges, but does not explicitly authorize subsidies to help cover plans sold by the federal exchanges. The IRS issued a regulation that federal exchanges were eligible for premium subsidies. But a group of anti-Obamacare plaintiffs, headed by an attorney from the Federalist Society, argued that because Congress had not expressly mentioned subsidies to plans under the federal exchange, those subsidies were unlawful. And that argument won the first round in the DC Circuit Court, whose panel ruled that regardless of whether Congress intended the subsidies to also be available to plans under the federal exchange, a strict reading of the legislation said otherwise.
The safest and most obvious route to avoid jeopardizing the health insurance of millions of people would have been a technical fix through the legislature to specify that, yes, the federal exchanges are just as qualified for subsidies as those run by states. But this is the House of Representatives we're talking about, where destroying the Affordable Care Act has long been the ultimate goal of a frenzied majority. The House was given a choice between adding a couple of words to the law to eliminate any question about the intentions of Congress, or leaving open a loophole whose exploitation could have a minute chance at destroying the whole system. Guess what they chose.
So, Congress intentionally left a drafting error on the books, just waiting for someone to walk through it—and Michael Cannon at the libertarian Cato Institute did exactly that. As Dave Weigel explains at Slate, it does not matter to Cannon and his fellow ideologues whether the law is working as intended (and it is), or how many people could theoretically suffer if their insurance suffered a massive spike in cost as a result of the premium support subsidies being ruled illegal for the federal exchanges:
Cannon's goal, stated bluntly and frequently, was that Obamacare had to be brought down by any means necessary. States that did not set up exchanges were in a better position to sue the government. Fewer people in the exchanges meant higher overall costs. To insurers, the "death spiral" was an apocalypse scenario; to Cannon, it meant freedom.
"A victory for the Halbig plaintiffs would not increase anyone’s premiums," he wrote Monday.* "What it would do is prevent the IRS from shifting the burden of those premiums from enrollees to taxpayers. Premiums for federal-Exchange enrollees would not rise, but those enrollees would face the full cost of their 'ObamaCare' plans."
Now, the
Halbig decision is not likely to be consequential: the administration will certainly request an
en banc review by all eleven members of the DC Circuit Court. Thanks to Senator Reid's
exercising of the "nuclear option," it is almost certain that the full court will rule in the administration's favor—though how the Supreme Court would rule should the case make its way there is open to much speculation.
But regardless of the prognostications about ultimate outcomes, one thing is certain: the conservative approach to undoing the Affordable Care Act has become increasingly evil. They started by making ridiculous claims about how the law would create tyranny and bring death panels to America. Once the law passed, conservative state governments decided to go against their own ideology of local control and states' rights by refusing to create exchanges. When the Roberts Court ruled that states were not required to accept Medicaid expansion, many of these same conservative states refused do that too, hurting their own most vulnerable citizens in the process. When the enrollment period opened, deep-pocketed conservative groups led entire campaigns to convince the younger, healthier demographic on which the law's success depends not to participate. The goal was to artificially cause the law to fail by reducing participation among those who would require the least care on average, causing a premium "death spiral" as only the neediest accepted coverage, thus driving up cost. Well, that didn't work either.
And now that every single other attempt to derail the law has failed, the conservative movement is now trying to take advantage of a drafting error that they long knew about but refused to fix to retroactively create a death spiral by stripping subsidies from millions of people and driving them back into the ranks of the uninsured—harming not only them as individuals, but society as a whole. All because of a technicality.
It's time to take a step back from the horse race and the speculation about how Halbig will end up, and get a broader perspective. The desperation of the anti-Obamacare movement is matched only by its increasing moral turpitude.