The Halbig versus Burwell Case

++Since the Obama Administration has had an erratic record in court cases recently,court observers are concerned that all of the ACA could come undone by Halbig vs.Burweill, which was crafted by the CATO Institute and Case Western Law School. 

++Previously the plaintiff's lost at the D.C. District Court and has appealed it to the Circuit Court of Appeals. The case challenges the notion that the subsidies for the taxpayer are available for the federal exchanges. The federal exchange was simply envisioned as a stopgap measure for states who opted out of ACA. But when the Roberts Court ruled that both the Medicaid expansion and the ACA were optional for states, the federal exchange assumed the burden of absorbing some 36 states.

++Without the subsidies for health insurance,observers fear that this would destabilize the healthcare market and force premiums to rise because of the prohibitions against pre-existing conditions. It would presumably eliminate the much needed young enrollees who are too poor to buy regular health insurance.

++The D.C. District Appeals Court is a three judge panel, two of whom are Republicans and who have already made disparaging remarks about both the law and the government's case. The judges expressed sympathy to the plaintiff's argument that the language of the ACA only confirmed that subsidies were confined to the state exchanges.

++The Democratic leaders for the ACA in Congress submitted an amicus curiae brief that said that the law meant to include subsidies for the federal exchange because it was a fallback position. It sounds lamer than it was worded.

++If the ACA loses, the administration could and should ask for an en banc ruling by the full D.C. Circuit Court. There the odds are more favorable. 7 Democrats and 4 Republicans sit on the court. This was one of the reasons for filibuster reform so the administration could fill this court.

++ Given the horrendous decisions of the last week by SCOTUS, it is not unreasonable to expect another horrible decision by the three-judge panel. There has been a proliferation of court cases to destroy the ACA. So the SCOTUS rulings give their Republican brethren an excuse to score more headlines and create a potential disaster.

++Only TPM has really followed this case with any seriousness while other democratic blogs dismissed the case as a blatant political attempt to destroy ACA, which it is, that has no merits. I hope they are right but George Washington's Jonathan Turley has argued the language of the ACA was poorly drafted and left this gap. George Will has written two columns that this case will doom Obamacare. 

++There is another dimension here. The law is 5 years old and between 17-24 million people have benefited. How many of these received subsidies? How many would be thrown off if the Court decided against the administration? Would a court rule against a law that benefits millions? We have seen in Hobby Lobby that it did and would. Would you or I rule in a way to deny millions healthcare? No, but the courts have shown in recent years a strange distance from reality.

++The added problem to this case are the optics. The right is revving up stories about the confusion on the first figures in the federal exchange and the need to verify incomes and nationality. Today, Breibart wrote a piece that millions of illegals have been allowed health insurance because of this confusion. Probably, like all rightwing talking points on the ACA, it is wrong but it will take a week or more to get the real facts. In the meantime,the two Republican judges might want to get a headline to muck things up for the mid-terms.

++Of course,you could insert a short clause in the law to straighten things out. But with this Congress, that would be impossible and the GOP have bet the ranch on a strategy to kill health care.