Brian Beutler’s article attempts to make the case that Republicans might ultimately lose if the Supreme Court upholds today’s ruling:

An adverse Supreme Court ruling would throw the ACA into chaos in three dozen states, including huge states like Florida and Texas. The vast majority of beneficiaries in those states would be suddenly unable to afford their premiums (and might even be required to reimburse the government for unlawful subsidies they’ve already spent). Millions of people would drop out of the insurance marketplaces. Premiums would skyrocket for the very sick people who need coverage the most.

But that’s where the conservatives’ “victory” would turn into a big political liability for red- and purple-state Republicans. An adverse ruling would create a problem that could be fixed in two ways: With an astonishingly trivial technical corrections bill in Congress, or with states setting up their own exchanges. If you’re a Republican senator from a purple state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.

Conservatives would like to believe that they could just leave something as deeply rooted as Obamacare permanently hobbled, or that they could use the ensuing chaos as leverage, to force Democrats to reopen the books, and perhaps gut the law in other ways. I think they’re miscalculating. Just as government shutdowns and debt default threats don’t create leverage because the public doesn’t support inviting chaos in pursuit of unrelated goals, I don’t think an adverse ruling in Halbig will create leverage for the GOP.

I think Beutler isn’t just wrong about the leverage. I think he’s kidding himself if he thinks this puts Republicans in a difficult position.

By the time the Supreme Court rules on this lawsuit, it’s quite possible that there will be Republican majorities in the House and Senate. If that’s the case, think of this scenario:

Congress might well change Section 36B as part of a bigger bill that’s sure to include other provisions that Republicans like and that President Obama doesn’t like.

For instance, a new bill might include a change to 36B along with a change that eliminates the medical device tax, another change that changes the definition of a Qualified Health Plan, aka QHP, and a change that reduces the penalties for the employer and individual mandates.

Employers and families would certainly love a tiny penalty for not obeying the law. Young people would love being able to buy a catatrophic policy with a HSA to cover other expenses. There’s no question that eliminating the medical device tax would make medical device manufacturers happy.

At that point, President Obama signs the bill that’s essentially a fresh start that dramatically improves the ACA or he vetoes a popular bill that forces families to pay higher insurance premiums, that doesn’t repeal an unpopular tax and he alienates major parts of his base. In my opinion, that’s ‘Rock meets hard place’ territory for President Obama. The good news is that it’s great news for employers, families and young people.

All that’s required is for Republicans to pass a bill that’s filled with popular provisions. Since a majority of people don’t like the bill’s specifics, that shouldn’t be that difficult.

Finally, Beutler insists that this is judicial activism. There’s nothing activist about the DC Circuit’s ruling. They said that Section 36B meant what it said. For the record, here’s the specific language of Section 36B:

monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act

The judiciary’s first responsibility is to determine whether a law is constitutional. If it passes that test, the next test is to determine whether the statute gives the executive branch the authority to take action.

In this instance, the DC Circuit ruled that the ACA didn’t give the executive branch, in this case the IRS, the authority to change a major provision of the statute.

It isn’t radical to think that the executive branch doesn’t have the authority to rewrite specific provisions of existing statutes. If the Supreme Court validates this ruling and if President Obama wants that provision changed, there’s a simple remedy: work with Congress to change that part of the ACA.

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6 Responses to “Halbig v. Burwell winners”

  • walter hanson says:


    One thing you didn’t mention since you were busy attacking the writer who did the garbage you commented on. Lets follow it logically:

    * The subsidy right now is being by the Federal government and what is being challenged is the method millions of Americans get it has been ruled unconstitutional.

    * Is there another method for the subsidy to be legally delivered. Yes there is you give a tax credit which every American can get therefore you don’t have to worry anymore if your state has a state exchange or not.

    * Since you’re giving a tax credit you can automatically rewrite the mandate rules, the minimums for a policy, give permission to buy across state lines, etc.

    And here’s the best part the Republicans right now can move forward this bill because they see that there is potential chaos in the healthcare market which needs to be corrected.

    What do you think?

    Walter Hanson
    Minneapolis, MN

  • Sean says:

    You can’t ignore what occurs in Section 1321 (c), though, where the law spells out what happens when the state fails to create an exchange.

  • walter hanson says:


    Two things.

    One, if there is a section 1321 that kind of shows by itself that it is sort of impossible to write one bill that can do the entire medical field like Obama did.

    And two, are you saying since I haven’t seen it anymore that section 1321 is what gives the Federal government the right to create an exchange if the state doesn’t write one. In which case the argument can be made (since it hasn’t been claimed yet) that they weren’t given the right to do it since they would’ve been given the right in their creation language.

    Walter Hanson
    Minneapolis, MN

  • Sean says:

    I don’t understand your first point. There aren’t literally 1,321 sections to the bill.

    Sec. 1321 (c) says that if the State fails to create an Exchange than the Federal Government “shall (directly or through agreement with a notforprofit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”

  • walter hanson says:

    Sean there has to be 1,321 section since you said there was a section of 1,321. The point I was trying to make if you need more than a 1,000 sections (after all it was a 2,000 plus page bill) it’s kind of impossible to write a bill that reforms our health care system in one scoop. That’s a major mess Obamacare has created.

    Thanks for the definition. Part of the problem with what Obama did in effect was to give to the Secretary of HHS powers that is associated with the IRS. The Secretary shouldn’t be able to do things which they aren’t authorized to do.

    Walter Hanson

  • Sean says:

    Section numbering doesn’t start at one, and it’s not sequential — it’s systematic, designed to provide organization to the bill. Perhaps you should check out the actual bill text sometime.

    The main part of the bill is broken up into six subtitles. Each subtitle has sections with specific number beginnings.

    Subtitle A starts at 1001 (and goes through 1004).

    Subtitle B starts at 1101 (and goes through 1105).

    Subtitle C has section 1201 (and another partition that contains sections 1251 and 1252).

    Subtitle D is broken up into five parts (1301-1304, 1311-1313, 1321-1324, 1331-1333, and 1341-1343).

    Subtitle E is broken up into three parts (1401-1402, 1411-1415, and 1421).

    In other words, the bill has over 1,200 fewer sections than you suggested it did.

    I would also suggest that complaining about the number of sections in a bill is one of the lazier complaints. Have you ever read a defense authorization bill? A lot more sections than the ACA.

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