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Halbig corpus interruptus

In more stunning proof that America’s 18th century style governing process just doesn’t work, a subset of a regional Federal court ruled against part of Obamacare. The Halbig ruling is certain to be overturned by the full DC court and then probably will stay that way after it makes it’s way through the Supremes–at least Jonathan Cohn thinks so.

But think about what the Halbig ruling is about. Its proponents say that when Congress (well, just the Senate actually as it was their version of the bill that passed) designed the ACA, they wanted states only to run exchanges and only people buying via states to get subsidies. But that they also wanted a Federal exchange for those states that couldn’t or (as it turned out) wouldn’t create their own. But apparently they meant that subsidies wouldn’t be available on the Federal exchange. That would just sail through Logic 101 at any high school. Well only if the teacher was asleep, as apparently most Senators were.

Now two judges interpret what was written down to imply that subsidies should only be available on state exchanges–even though logic, basic common sense and fairness would dictate that if we’re going to subsidize health insurance we should do it for everyone regardless of geography.

Don’t forget that in the House version of the bill there was only a Federal exchange. That would have saved the taxpayer several billion dollars in the creation of all the state exchanges (and maybe have focused on getting Healthcare.gov right quicker?). We’ll never know but it’s entirely logical to suspect that–as the only reason for separate State exchanges is local pork (how many million $$ to Oracle for Oregon, Xerox for Nevada, etc, etc)– the House would have reined in the excesses of the Senate bill in conference, and made it one Federal exchange with national subsidies. It’s just not logical to pass a bill saying that we should favor one type of exchange over another, when the wonders of modern technology mean that we don’t need a damn exchange in the first place.

Of course, it’s the Senate’s fault that the ACA had to go through the crazy process in the first place–given that it needs 60 votes to get anything done and the Democrats lost Ted Kennedy’s seat at the vital moment. (Thanks Martha Coakley, and yes I am supporting your opponent Don Berwick in the Mass governor’s race). Don’t forget for a minute that the Senate is profoundly undemocratic and small “c” conservative. Fifty three thousand pig farmers in nine states vote in a bunch of old white men who basically control the whole thing–none of whom give a rat’s arse about the realities of life for Americans who actually live in the modern world. They’re representing the 1830s world where we’re all farmers or miners, and poor and non-white people can’t vote.

So to take a step back, we need to remember that at least the ACA, watered down as it was, actually passed Congress. But because of our governmental and court system we have ended up with several simply stupid consequences:

  • Mixed employer/individual health insurance–stupid
  • Differential tax treatment based on employer provision of insurance benefits–stupid
  • Medicaid expansion instead of incorporation in general insurance–stupid
  • Four to six years to implement–stupid
  • Different online exchanges in every state–stupid
  • Medicaid expansion delivered (or not), state by state–stupid
  • “Opting in” to insurance, requiring a huge outreach, instead of automatic enrollment–stupid
  • Continuing funding needed for community clinics & FQHCs because we will still have millions uninsured — stupid

I could go on but you get the idea. Basically it’s almost impossible to pass any form of sensible government policy in this country. You may say it’s the American way but it’s clearly stupid, and we shouldn’t be promoting stupidity.

CODA: I’ve been teasing Michael Cannon from Cato, who’s been Habig’s tireless promoter, calling him Chiang Kai-Sek. From 1949 to 1975 Chiang claimed he was the ruler of China, even though he only ruled Taiwan, and the ideology was that victory over the communists was imminent. Even though the war was long lost, he called Taipei the “wartime capital”. Cannon has been acting as though the same thing is true for those opposed to Obamacare, despite the long string of defeats his side has had over the ACA. Looks like with this interim ruling on Halbig, the Nationalists have established a beachhead. Realistically though, the communists will soon throw them back into the sea.