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 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.


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  1. Our head pig, a.k.a. the “Fundraiser in Chief,” once chided us that “elections have consequences.

    Indeed they do, and likely soon we will have a new set of pigs in charge. Perhaps the new pigs will then use the IRS to target the previous pigs, use the NSA to spy on the previous pigs, and use the Justice Dept to harass, intimidate, and jail the previous pigs.

    It will be interesting to hear low loudly the old pigs will squeal then . . .

  2. Dr. Palmer: Exactly right. I’m a Kennedy School grad, so I’m very familiar with the thinking: The experts know best. After all, they’re really, really smart and they’ve spent much time talking and thinking about policy. On most issues, these bright minds have come to a “consensus,” and the maximally efficient policy is clear (to them). How could a pig farmer from Nebraska even begin to understand the complexities? In their view, separation of powers is an anachronism, a hindrance to the enlightened administrative state.

    The K School community agrees nearly unanimously with these ideas, namely that most Americans are so stupid and uniformed that power should be vested in the hands of the enlightened few.

    Very dangerous thinking.

    • Pig farmers are interested in the short term interests of pig farmers. Giving them (or small states) massively disproportionate influence in running the country over everyone else and the national interest is neither democratic not rational.

      • When someone claims that they’re working in the “national interest” it really means that they are pursuing their own interests and that they’ll broker no interference. Policy in any well functioning democracy springs from a patchwork of competing interests. When some groups are told that they’ll not be allowed to pursue their own interests, since to do so would undermine to so-called “national interest,” we’re leaving the realm democracy and venturing into authoritarianism.

        • Hey, isn’t Nancy Pelosi the National Spokesperson for the Democrat agenda in just telling us “write us a blank check and just wait for us to write laws that then inherently are passed because we aren’t interested in reading what partisan hacks put in it anyway, because it is about the partisan interest, not public interests.”

          Why a voting citizen with half a brain votes for anyone, irregardless of party affiliation, who is incumbent more than 10 years in office, is simply both amazing and inherently at least a bit corrupt, irregardless of ignorance.

          But, how Obamacare made it in the first place, eh?

      • If you remember Orwell’s book “Animal Farm” you will remember that the pigs were the elitists that controlled the farm. “All animals are equal but some animals are more equal than others”

        We should try and remember what that book was all about for it isn’t the pig farmers that are ruining America. It is the Pigs. What stops the Pigs from having dictatorial rule? The Constitution.

  3. @Holt
    I’m not sure the Constitution was supposed to “work”. When you read the founders and the Federalist papers, e.g. one gets the impression that their principle effort was to create obstruction to the accumulation of power. Smooth efficient functioning was not on their minds. It was a tyranny-prevention exercise. Thank god for that. It’s mostly good that it takes forever to get anything done. [Mostly, not always]

  4. Mathew Holt is a big advocate of the technocratic state, and he doesn’t much care for popular interference. This whole American constitutional system thing just gets in the way. How can the experts from California and Massachusetts run the country when all those obstructionists from irrelevant states keep getting in the way. Can’t we just do away with the Senate, or transfer seats from Oklahoma to California?

    • Adam, you got that right. When I said we were a Constitutional Republic Matthew Holt’s response was “which is the underlying problem”

      • The. US constitution (or at least the way it is interpreted and consequently the US is governed) is neither particular “popularist” nor very effective.

        We’d be much better off with a proper popular election of a parliamentary government that can create stable national policies. The rest of the world is laughing at the fact that four and a half years after the legislation was (barely) passed in a totally convoluted way, we are still not finished.

        You can support the constitutional republic we have all you like, but it spells long term disaster for the US and the world. And exhibit A is a low income person needing health insurance in a southern Red state, say Florida, denied either Medcaid, or now (possibly) the subsidy that they used to buy on the Federal exchange.

        Oh and for Exhibit B the same Red state leaders don’t believe that Miami will sink because global warming is a myth…

        • Why not just advocate for revoking the 22nd amendment of the Constitution first, after all, asking to change the basic structure of government now by “We’d be much better off with a proper popular election of a parliamentary government that can create stable national policies” seems like yet another veiled partisan agenda.

          And thanks Mr Holt for the validation to my premise this blog is not about looking at Health Care, but just protecting the agenda of the Left/Democrats/health care obstructionists.

          Then adding the submersion of Miami at the end, are you going to address immigration next here?

          But, it is your blog, just a little better transparency for those of us who come here looking for debate and discussion, not getting settled to start the next verse for the choir here…

        • The only reason the Constitution might lead to long term disaster is the misuse of the Constitution by those that treat it like toilet paper. Something to be used and disposed of.

          The Constitution along with our Bill of Rights protects the minority from the majority. Some, however, believe that the majority have a right to enslave the minority.

          The Constitution has a way out and that is known as a Constitutional amendment. That slows things down a bit and makes sure that temporary majorities are a bit more permanent.

          I won’t go into the comments made about health insurance because it is those that destroy the Constitution that are at fault to begin with. They have pushed spending to the point that costs have risen to outlandish levels while divesting the working population of capital to keep our economic engine going.

          ” The rest of the world is laughing ”

          Let them laugh if they are. Home amenities even for our poor Americans is greater than almost all these places. These nations especially the European nations laughed at our Constitution and our attempt to create a new nation. If it weren’t for this nation the world would not be as rich as it is today and most of Europe would be speaking German.

  5. I just ran across this:

    GRUBER V. GRUBER (one of the architects of the ACA)

    Jonathan Gruber speech, January 2012:

    “What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.”

    Mother Jones, January 2013
    If these benefits aren’t available in states with federally run exchanges, the argument goes, then other key components of the law, like the requirement that employers offer health insurance, and that most people must buy insurance, also fall apart in those states.
    Jonathan Gruber, who helped write former presidential candidate Mitt Romney’s Massachusetts health care law as well as the Affordable Care Act, calls this theory a “screwy interpretation” of the law. “It’s nutty. It’s stupid,” he says. And beyond that, “it’s essentially unprecedented in our democracy. This was law democratically enacted, challenged in the Supreme Court, and passed the test, and now [Republicans] are trying again. They’re desperate.”

  6. This just proves Nancy Pelosi correct. We’ll have to read it to find out what’s in it… In healthcare a mistake like Congress made would be considered negligence and malpractice… What gives… Our lawmakers are halfwits being manipulated by twenty something staffers.

  7. Hmm, you folks want to debate one court ruling just so your agenda can be justified, when where is the dialogue about this little matter originated by the GAO, not a partisan hack tank, and the source here by the Huffington Post, again not a republican/conservative hack site.

    But, partisan blogs aren’t interested in legitimate debate, just stay in tune with the chorus and don’t rock the boat!

    It’s a crap law, and you can split the fine hairs what Pelosi said back in March 2010, we all know she said “pass the bill and we’ll read it later” in her own growingly demented prose.

    The video clip is in the below link. Come on Bobby, can you have one moment of honest candor in your life?

    Read up on the definitions of “principles” versus “agendas”, and you learn the difference between an honest electorate, and a dishonest government, by both side of the polluted aisle known as “Republocrats”.

    Incredible what passes for intellectual dialogue here sometimes…

  8. 906 pages with 2.5 inch margins. I have a PDF copy I can send you.

    “zero bipartisan effort”

    It passed with 300 GOP amendments in it. And, as for the party line vote, it’s known as “majority rule.” Sux, doesn’t it?

        • Mathew, I like your honesty.

          I wonder which part you don’t like or if you don’t like the combination.

        • Bobby, your comment also included:

          “it’s known as “majority rule.”

          Majority doesn’t rule. The Constitution does and then we vote upon things in a democratic fashion.

          • Take note I said we vote democratically, but it appears you lack the basic knowledge behind the creation of our nation or the reasons our founders chose a Constitutional Republic.

            Instead you call it semantics to hide your naiveté.

          • “Majority doesn’t rule. The Constitution does and then we vote upon things in a democratic fashion.”

            Even the Canadian socialist hordes to the north have a constitution, as do most countries – even ones that embrace discrimination in their society. A constitution does not automatically protect everyone from the tyranny of the majority mob.

            I think these economic and Constitutional purists live in a vacuum devoid of reason, especially when they purport that their interpretation of the Constitution is the only truth. Ultimately they are no different than any other fundamentalist who really wants to impose their own minority rule from a closed mind.

            The U.S. “democratic fashion” approved the ACA.

          • @Peter1

            You are right Peter. The Constitution doesn’t automatically protect from the tyranny of the majority. It is up to the people to see to it that the Constitution is upheld. When their leaders trample on the Constitution and the people do nothing the Constitution can become valueless. We have seen that happen at various times throughout history. Presently, some lifelong committed Democrats have stated there is a Constitutional crisis.

            The Constitution recognizes change and provides a methodology of change so in that fashion the Constitution isn’t the only truth. It can be modified. Those that wish to deny the principles of the Constitution simply prefer the tyranny of the majority as long as they are part of it.

        • Yo!, Mr. Bobby. Still haven’t looked up the difference between bills and laws. Here’s a hint.

          Listen to this a few times then we can move on to the parts about smashing together bills, deemed to pass, 60 vote clotures, and revenue bills originating in the House of Representatives. Then we can move on to the tricky revenue, tax, penalty, three card monte.

          • I certainly don’t need any hints from the likes of you. Nor do I require any of your Edukashion on the legislative process and its upshot.

  9. The “governing process” that you so roundly criticize as “not working” has served our nation well for 225 years. The genius of those who authored our Constitutional framework should be evident to all.

    On the other hand, this abomination known as “Obamacare” (which, BTW, is not remotely authored by Obama, nor did he appear to have much interest in contributing to it until now that it has been thrust upon us, warts and all) is the ABSOLUTE contribution of the democratically controlled House, Senate, and President.

    You can’t argue that our “Government doesn’t work” when one party controls the entire Legislative branch, and the Executive, and is working aggressively to dominate the Judicial. On the contrary, many of us would argue that this is in fact a situation in which government worked “too well.” It was rammed through literally in the middle of the night, with back room deals to bribe senators and states and insurance companies, then proudly lauded over by a beaming autocrat of a president, the same one who now brags that he doesn’t “need” Congress, because he has “a pen and a phone.”

    Perhaps some of those championing the Affordable Care Act as the best thing since sliced bread should have actually taken the time to learn what was in this 2,000 page monstrosity, instead of taking Speaker Nancy Pelosi’s advice and “pass the bill so we can find out what’s in it.” Now, to borrow a phrase from the president’s mentor, “the chickens are coming home to roost.”

    It is not the fault of the Supreme Court that the ACA is a disaster. It is the fault of those who WROTE the bill, and those who are IMPLEMENTING the bill. It is merely the job of the SCOTUS to determine if the ACA passes constitutional muster, and by an extremely narrow, technical point, it did so barely as a “tax,” in an exercise of semantic and intellectual gymnastics that would make any savant’s head hurt. (see Am. Fed of Business vs. Sebelius).

    If you wish to cast blame for the ACA disaster, don’t blame our Constitutional form of government. Don’t blame the judicial system or the Supremes. Instead blame Harry Reid, Nancy Pelosi, Barack Obama, and Kathleen Sebelius. The democratic leadership created this all on their own, with zero bipartisan effort, thank you very much. Now it’s falling on its face. Waaa waaa waa.

    They could have written (as you indicated above) a simple bill for expanding Medicaid, or selling insurance across state lines (whether via “exchanges” or not), and addressing tax consequences of purchasing insurance. That was not the strategy. This bill was not about getting more people health care. It was about gaining ever more control over a vast % of our economy. Some wags even suggest that it was intentionally written to fail, in order to allow Obama to then push for a “single payor” system, which it appears you favor.

    Dictatorships are always a lot more efficient (see “pen & phone” boy, above), but I prefer the messy system we have. Just maybe it’s not our Constitutional framework that is flawed, but the stupid people we elect?

    • ‘ “pass the bill so we can find out what’s in it.” ‘

      Of course, that’s not what she said, but don’t let that get in the way of whatever point you’re trying to make.

        • @Arthur: “…and of course, G.H.W. Bush never said “read my lips, no new taxes”.”

          …And those that voted for him were upset, however in the case of Nancy Pelosi there is no such thing as being upset because the left follows lock step much like the rats followed the pied piper.

          • Agreed. I was referring more to context than fall out. G.H.W. B.’s comments were directed at congress. And, it may very likely be that he did tell them no to new taxes several times including read my lips.

    • The problem is that this system has NOT served us well, and dealing with a complex problem like health care is exhibit A. But we could have talked about energy/environment, criminal justice, education or many others, where a comprehensive national planned strategy is desperately needed and completely unavailable.

      The problem is not that politicians are stupid–it’s that they are completely in thrall to the various sub interests both local and industry based that run the country. A single national parliament has to put together a coalition that thinks about the whole country’s interests. Which is why Scandanavia, Germany ,et al (not to mention Singapore) are better run than the US–which has been chasing its tail for the past three decades.

      • Matthew, I think you hit the nail on the head. Too much power has been concentrated in the hands of the federal government. It has tons of money and power to throw around and this is increasing.

        With all that money out there it is no wonder that lobbyists combined with our leaders are sucking out the lifeblood of the nation. There are certain advantages to smaller governments and one of them is that it isn’t worthwhile for lobbyists to spend so much money to gain advantage over others.

        [We should remember our history lessons and permit our brains to look at trains: Long haul vs short haul.]

      • Thank god we had a better run Scandinavia (that’s a country near Scandanavia) to keep a better run Germany in check and did not have to rely upon the USA for a comprehensive national planned strategy that was completely unavailable. Then again, you may say it’s the American way but it’s clearly stupid, and we shouldn’t be promoting stupidity.

  10. “ObamaCare” is “AHIPcare.” Nothing Commie or “Socialist” about it. The private market intermediaries remain firmly in place. Hell, they WROTE the law.

    • A private market constrained by government rules and regulations is not a private market. When the purchaser is forced to buy from only government approved sellers one doesn’t have a private market.

      Private marketplace= A willing buyer and a willing seller

      Despotism: The willing buyer and willing seller have a gun to their heads.

        • The term technically is objectivist not Randian, but it doesn’t matter to me for I don’t fit into that mold.

          So you think Adam Smith was a “Randian”?
          Stalin was ‘freeing’ his people and gave them the freedom of choice at a point of a gun.

          My comment about a willing buyer and a willing seller was not hyperbole. The word ‘willing’ has a meaning. Willing is consent without coercion.

        • Where do you get your ideas Bobby?

          No ploy. Just stated the facts.

          Yes, Adam Smith was a philosopher, but he was also a pioneer of political economy. He wrote the Wealth of Nations and is considered the father of modern economics.

      • Allan, regulatory capture – look it up.

        Market participants – particularly successful market participants – LOVE “regulation”.

        You’ll find your leading “despots” are your most committed “free market” cheerleaders

        makes your pointed little head hurt, don’t it?

        • civisisus, are you so unsure of your intellectual ability that you have to resort to insult instead of intelligent discussion?

          The funny thing is that I mostly agree with what you have said. Self interest leads most people to resort to the arm of government to protect themselves. That is one reason to strive for a free market system. What you describe is not a part of the free market though some claim they are doing things in the name of the free market. You are more likely to see that in socialized or fascist systems where government involvement and enrichment of the elite is the rule not the exception.

          • Gallantly allan defends free markets/ capitalism, and he should as no better system has been designed by mankind that has a higher net utilitarian benefit to society.

            That we now equate obesity, rather than starvation, with poverty shows that capitalism also has side effects. What doesn’t?

            Healthcare is a different beast, though.

          • Thank you Saurabh. Healthcare is a different beast as is claimed by every other person trying to demonstrate why their specific field of interest is different than every other one.

            We recognize that fact and created the public health system to mitigate the problems of those unable to help themselves and those unique problems that cross the line from one individual to another.

      • Your logic is wrong. I would be a willing seller if I could simply mix some dough and sell it to the public as “pain killer”. I might as well be able to find some willing buyers because what I am selling is cheaper than Tylenol. Do you want this kind of marketplace? What if my dough has poison in it? The marketplace needs regulations for it to work. By regulating, government does not force you buy from someone, it simply disallow guys to offer under-qualified products.

  11. Is the analogy used here that the communists drove the anticommunists into the sea and now the Obamacare proponents will throw those that believe in free markets back into the sea? It’s an interesting analogy to use since some believe Obamacare is a step in the direction of socialism and communism.

    • Worth noting that Taiwan went looking for a solution to its health care woes in the 1990s and adopted a Canadian Style single payer! They still claim that they rule China

      • ..And the Chinese claim they rule Taiwan. That is a political claim which is different than an economic claim. Market systems work best as even the Chinese are finding out.

        The Canadians recognize that their system is unsustainable just like all western healthcare systems. If I am correct the Taiwanese adopted a single payer system of their own that is closest to our Medicare. Their system is relatively new. It takes time for this type of system to smell and for awhile the system had reasonably good approval ratings from its citizenry, but not that long ago it started to smell. I think they pumped money into the system and it smelled better, but I understand things are brewing so I guess when they start to smell again they will pump more money in. That is where the sustainability problem enters the picture.

  12. I love the lame post hoc one-branch-removed “Ouija board” process of judicial review. Deference to the ostensible a priori supremacy of intent — “legislative construction” (insofar as it doesn’t clearly exceed legislative authority delimited by the Constitution), as inferred by a majority of judges.


    Why not — well — just — hel-LO — call them as witnesses (or depose them) and — well — just ASK them (those in the majority who passed the bill) under Oath. What did you INTEND here?

    Do you even know? Who among your staffs (ghost)wrote this POS provision?

    Far too simple and direct.

    “asleep, as apparently most Senators were”

    No, they were working the phones and the restaurants whoring for money every day.

    Read Kuhner’s important book “Capitalism v Democracy.”

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