While the implications of the Hobby Lobby ruling may be far reaching, as law professor Jonathan Turley notes in the LA Times, there is an even more significant case (Halbig vs. Burwell) now before the highly influential U.S. Court of Appeals for the D.C. Circuit.
He writes: “The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges ‘established by the state.’ "
When challenged in court, the administration has argued the statute's language does not refer only to individual states’ exchanges, but actually refers to any exchange, including federal ones. And so the subsidies have continued for now.
But there is a chance the D.C. Circuit Court could interpret matters more strictly, especially since the recent decisions by SCOTUS aimed at curbing runaway executive power. Justice Antonin Scalia, for instance, previously has expressed concern about entities that arbitrarily change laws after passage, writing that "an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms."
But changing laws after they have passed by executive fiat or by regulatory finessing by unelected agencies is not the only problem. If the Court rules against the administration, it would mean that President Obama has authorized the spending of billions of dollars to be paid from the federal Treasury without proper authority.
The spending would be yet another example of executive overreach -- in addition to the administration’s changing the law arbitrarily. The ACA has been changed some 41 times and counting, according to the Galen Institute, which says ObamaCare has been unilaterally changed by the Obama administration at least 23 times. Congress has passed 16 changes and SCOTUS has made two.
As Turley puts it, the billions spent on subsidies without congressional authorization “would mean the administration has committed yet another violation of the separation of powers.”
He adds, “If the [Halbig] ruling goes against the White House, it's hard to overstate the impact. Without subsidies, consumers in 34 states would face huge additional costs and, because of those costs, potential exemptions from the law. And voters -- a substantial percentage of whom have never liked Obamacare -- would be further alienated from the Democratic Party just in time for midterm elections.”
The result would be that “Halbig could allow a mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support -- and lead to another showdown in the Supreme Court.”
In other words, according to a lawyer I spoke with, if the Halbig case receives a favorable ruling, the decision “would basically eliminate the core subsidies in 34 states, gutting the structure of the act.”
One can only hope.