June 23, 2018
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A dose of absurdity in the Halbig ruling on Obamacare

Jessica Rinaldi | Reuters
Jessica Rinaldi | Reuters
A patient waits in the hallway for a room to open up in the emergency room at Ben Taub General Hospital in Houston, Texas, in this July 27, 2009 file photo.

On Tuesday, a three-judge panel at the U.S. Appeals Court for the D.C. Circuit issued a flawed ruling that subsidies for health insurance coverage should never have been provided in states with federally run exchanges under the Affordable Care Act.

In fact, we could describe the ruling as one based in absurdity. We’ll explain:

First, let’s look at what the court did acknowledge.

The court recognized the purpose of the Affordable Care Act — “to increase the number of Americans covered by health insurance and decrease the cost of health care.”

It then acknowledged how Congress planned to reach those goals — by helping people who do not receive health insurance through an employer to purchase it directly on an exchange.

The exchanges operate websites that allow people to pick and enroll in qualified health care plans. They also are the gateway through which low- and middle-income taxpayers get tax credits to help them pay for coverage.

Next, the court explained how the law surrounding the exchanges was designed — to have the federal government set up exchanges in states that declined to set them up themselves.

So it’s odd the court would claim that what is basically a typo in a poorly written part of the law overrules what the law’s creators and implementers know to be true — that tax credits should be available on federally run and state-run exchanges, not just state-run exchanges.

As a brief submitted by members of Congress, who led the enactment of the ACA, and members of state legislatures, who served when their governments were deciding whether to create their own exchanges, stated, “it was widely understood that the tax credits would be available to all Americans who satisfied the statute’s income criteria regardless of where they lived.”

Still, two of the three judges in Halbig v. Burwell agreed with the appellants when the ACA says, in a section describing premium assistance amounts, the aid will be granted to taxpayers enrolled “through an Exchange established by the State,” it literally is referring only to state-run exchanges.

The court essentially relied on half a sentence to argue in favor of ending tax credits in the 36 states with federally run exchanges — credits that are key to the ACA’s aim to subsidize insurance for those who can’t afford it (a point the court recognized in its opinion).

Laws aren’t made in a vacuum. What’s written in one sentence is important, but it’s not everything. It comes packaged within a much larger document, within a larger history of intent: to help provide health care to people who desperately need it. The larger law makes little sense, given the court’s interpretation of several words.

In offering an explanation, the court acknowledged it has a well-documented obligation to not adopt statutory language that would render other provisions of the ACA absurd. But it’s possible for something to “seem odd” without being absurd, it said. In such instances, “it is up to Congress rather than the courts to fix it,” even if it “may have been an unintentional drafting gap.”

Is this really a debate about the difference between oddity and absurdity? And if it’s not up to the courts to fix problems, is it its place to cause widespread harm because of a minor technicality?

If the decision is upheld by the full D.C. Circuit (it probably won’t be), nearly all Maine residents who enrolled in a health plan through this state’s exchange would see an effect: They would pay nearly 80 percent more in monthly premiums. Many wouldn’t be able to afford their coverage and would drop it. As the same pattern played out across the country, the financing that makes the ACA possible would collapse.

Eliminating health care for millions of Americans because of a drafting error? It sounds absurd to us.


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