# Halbig v. Burwell ruling against Obamacare subsides **URL:** \ **Category:** Great Debates\ **Created:** [July 22, 2014, 2:42pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740 "2014-07-22T14:42:40Z")\ **Posts on this page:** 20\ **Page:** 15
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [July 31, 2014, 8:55pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/281 "2014-07-31T20:55:45Z")
Here’s some fun and fairly new development in the case: WaPo’s Greg Sargent wrote: “The first Senate version of the health law to be passed in 2009–by the Health, Education, Labor and Pensions Committee–explicitly stated that subsidies would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.” Obviously the final version of the bill didn’t have this language. Here’s what the Supreme Court thinks of this kind of thing: “Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended,” Justice Harry Blackmun wrote in Russello v. U.S. (1983). “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Justice John Paul Stevens in INS v. Cardoza-Fonseca (1987) ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [July 31, 2014, 8:57pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/282 "2014-07-31T20:57:46Z")
> [@Terr](#): > > I thought you were a moron before. Now my opinion of you just took a dive. Oops. Just saw this was not in the Pit. Deleted, with apologies to the board. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 31, 2014, 10:27pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/283 "2014-07-31T22:27:04Z")
> [@ElvisL1ves](#): > > **That one came as a complete surprise,** the mandatory-purchase aspect being the core of the anti-Obama argument, and calling it “clear” is a misstatement of fact. Even so, it exemplifies the anti-Democrat and anti-democratic orientation of today’s Republican Party, not the “legitimacy” of the try-anything-as-long-as-it-fucks-'em-somehow tactics they use. The ridiculous Halbig case (remember that? It’s the thread topic) is just another. Assuming you are referring to the Medicaid Expansion when you refer to “(t)hat one” then I would absolutely disagree. Clearly the federal government cannot force states to expand Medicaid. Medicaid has long been a joint federal-state program but authority clearly lies with the states to control their own spending. The mandatory Medicaid Expansion under the PPACA would, after several years of the feds paying 100% of the expansion, eventually require states to spend money. The federal government does not have the authority to require states to spend like that. They can offer enticements to the states to implement such programs, but cannot force them to do so. The surprise, if there is one, of SCOTUS striking down such expansion is that the grounds on which they did so by saying the carrot-and-stick approach is ok, but he stick cannot be TOO big. IANAL, but I am not aware of the high court ever before striking down a law on such grounds. It presents a possible limit to future programs. However I am also not aware of any other federal program that proposed to remove all federal funding for a pre-existing fed-state partnership due to a state’s refusal to expand the parameters of such a program. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 31, 2014, 10:37pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/284 "2014-07-31T22:37:16Z")
Using the word “clearly” is handwaving. And taking a case of the SCOTUS majority throwing the minority a bone is hardly something to point to as a principle that delegitimizes the entire thing. The core was upheld and the law is now in effect - the only losers are the people in the states whose governors refused it, in their own attempt to resist it by any means possible. ACA is _the Republicans’ own idea_, remember? They only decided to \*oppose \*their own idea when Obama adopted it, and for that reason _alone_. They have no other idea at all to offer, because that \*was \*their only idea. That reflexive oppositionism isn’t legitimate in any way, it isn’t responsible, it isn’t adult, it isn’t even adolescent, it’s just a childish series of tantrums. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [July 31, 2014, 11:15pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/285 "2014-07-31T23:15:22Z")
> [@ElvisL1ves](#): > > Republicans […] just a childish series of tantrums. But you repeat yourself… ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [August 1, 2014, 1:10am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/286 "2014-08-01T01:10:22Z")
> [@ElvisL1ves](#): > > Using the word “clearly” is handwaving. And taking a case of the SCOTUS majority throwing the minority a bone is hardly something to point to as a principle that delegitimizes the entire thing. The core was upheld and the law is now in effect - the only losers are the people in the states whose governors refused it, in their own attempt to resist it by any means possible. The individual mandate is the core? Not the expansion of health care to people too poor to afford it? What is that, just a side benefit of the law? Interesting if this is really your thinking, that the core of the law isn’t to expand insurance coverage to the poor, but to force the middle class to buy health insurance. Which BTW, was also ruled illegal. Paying the tax brings an individual into full compliance with the law. Oh, and the IRS can’t collect the tax except by docking refunds, so you don’t even really have to pay the tax either. Some core. You’re better off sticking with the expansion coverage as the core. > [@](#): > > ACA is _the Republicans’ own idea_, remember? They only decided to \*oppose \*their own idea when Obama adopted it, and for that reason _alone_. They have no other idea at all to offer, because that \*was \*their only idea. That reflexive oppositionism isn’t legitimate in any way, it isn’t responsible, it isn’t adult, it isn’t even adolescent, it’s just a childish series of tantrums. They opposed the idea before Obama adopted it. Remember that period from 2002-2006 when Republicans were in complete control of Congress and didn’t pass their version of health care? That’s because by then there was too much opposition to that old version of health care, plus constitutional concerns with the individual mandate had cropped up in the think tanks. Which is beside the point: no Republican plan would have raised taxes or been 2000 pages long. ACA takes a kernel of a Republican idea and expands it into a bureaucratic monster. ---
**Author:** ![Drum\_God](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drum_god/32/44_2.png) [@Drum\_God](https://boards.straightdope.com/u/Drum_God)\ **Post date:** [August 1, 2014, 3:58am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/287 "2014-08-01T03:58:02Z")
> [@adaher](#): > > Which is beside the point: no Republican plan would have raised taxes or been 2000 pages long. ACA takes a kernel of a Republican idea and expands it into a bureaucratic monster. The full text of the PPACA (w/ reconciliation) is 974 pages. No where near 2000 pages. Cut the crap. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [August 1, 2014, 4:20am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/288 "2014-08-01T04:20:31Z")
> [@Drum\_God](#): > > Cut the crap. Then he wouldn’t be able to post at all. Not that I’m seeing a downside to that. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [August 1, 2014, 6:34am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/289 "2014-08-01T06:34:28Z")
Would be nice if liberal Dopers didn’t continue to spread ignorance with that moronic claim that it was a Republican bill. The fact that even Olympia Snowe couldn’t support it should tell you all you need to know about that. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [August 1, 2014, 1:08pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/290 "2014-08-01T13:08:56Z")
> [@adaher](#): > > Would be nice if liberal Dopers didn’t continue to spread ignorance with that moronic claim that it was a Republican bill. [Learn](http://www.politifact.com/punditfact/statements/2013/nov/15/ellen-qualls/aca-gop-health-care-plan-1993/). :rolleyes: > [@](#): > > The fact that even Olympia Snowe couldn’t support it should tell you all you need to know about that. Yes, it says she’s a RINO, just like the party’s controlling faction says. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [August 1, 2014, 1:14pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/291 "2014-08-01T13:14:50Z")
> [@adaher](#): > > The individual mandate is the core? Not the expansion of health care to people too poor to afford it? What is that, just a side benefit of the law? Anyone who had been paying even minimal attention to what the law actually is would know the answer to that. The mandate is what makes the rest possible. Without it, no, you don’t have coverage increases. It’s incredible that you need that explained to you. Try changing the channel sometime. > [@](#): > > They opposed the idea before Obama adopted it. Or they never seriously intended to do anything other than what their corporate sponsors told them to. > [@](#): > > Remember that period from 2002-2006 when Republicans were in complete control of Congress and didn’t pass their version of health care? Remember the period when they kept chanting “repeal and replace” without having anything to replace it _with_? That was from 2009 to the present day, and continuing. > [@](#): > > Which is beside the point: no Republican plan would have raised taxes or been 2000 pages long. Until there is a Republican plan, we’ll never know, will we? > [@](#): > > ACA takes a kernel of a Republican idea Make up your damn mind, willya? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [August 1, 2014, 11:58pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/292 "2014-08-01T23:58:03Z")
> [@ElvisL1ves](#): > > Anyone who had been paying even minimal attention to what the law actually is would know the answer to that. The mandate is what makes the rest possible. Without it, no, you don’t have coverage increases. The mandate has zilch to do with Medicaid. No one is required to take Medicaid, because if you qualify for Medicaid, you’re exempt from the mandate in the first place. It’s incredible that you need that explained to you. Try changing the channel sometime.(See what I did? I appropriated your own words to save time.) ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [August 2, 2014, 7:40am UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/293 "2014-08-02T07:40:53Z")
As expected the losing sides have appealed in both _Halbig v. Burwell_ and _King v. Burwell_. The Obama administration has appealed for an _en banc_ rehearing in the _Halbig v. Burwell_ case. See the petition [here](http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Halbig-US-en-banc-petition-8-1-14.pdf). The Court has already [requested a response](http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Halbig-CADC-request-for-resp-8-1-14.pdf) from the Halbig side. The administration essentially restates its arguments, though reserving its argument about standing to a mere footnote. Meanwhile the appellant in _King v Burwell_ has filed directly for a petition for a writ of certiorari to the Supreme Court. See the petition [here](http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/ACA-subsidies-King-petition-7-31-14.pdf). The appellants expanded upon their statements about legislative history, appearing to address issues raised at the Fourth Circuit including quoting the now infamous statements from the Gruber presentation at Noblis which made the rounds on video. Arguably the petition for cert had a somewhat easier argument to make given the split at the lower court level. Structurally the appellants attempt to show where the two decisions reached common ground and then emphasize the need for urgent review given the broad impact of the IRS rule and concerns over how the lower courts’ rulings should be applied. > [@from petition for Cert](#): > > Notably, this Circuit split is especially troubling given uncertainty over how the competing rulings would apply even in the Fourth Circuit’s territorial jurisdiction. On one hand, the decision below would ordinarily be thought to resolve the validity of subsidies within the states comprising the Fourth Circuit: Virginia, Maryland, North Carolina, South Carolina, and West Virginia. Yet, on the other hand, one of the Halbig plaintiffs resides in West Virginia. Further, the D.C. Circuit has long held that when it vacates a rule under the APA, such a decision has “nationwide” effect. Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409-10 (D.C. Cir. 1998). This division therefore not only has the usual effect of regional disuniformity, but also creates a special sort of nationwide confusion and conflict. IIRC, the United States Court of Appeals for the District of Columbia Circuit that heard the _Halbig_ case has a special sort of [jurisdiction](http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit) over certain matters of interpretation of rulemaking of government agencies and is not strictly limited to geographical jurisdiction. The petition for writ of cert in the _King_ case does make one argument that might push SCOTUS to go ahead and take that case rather than wait for an en banc ruling on the \*Halbig \*case - granting this writ is likely the only means by which SCOTUS would hear the case in the coming year. Time is ticking and there is a lot at stake in clarifying the matter. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [August 2, 2014, 3:44pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/294 "2014-08-02T15:44:43Z")
> [@Terr](#): > > I thought you were a moron before. Now my opinion of you just took a dive. Terr, that’s a warning and you should know better than that. Post, not the poster. And, for the general population: the sniping will stop now. Any more, no matter how small, will earn a warning. I don’t care that it’s a hot and sensitive topic. You will behave like adults in Great Debates. Is that clear? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [September 4, 2014, 3:39pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/295 "2014-09-04T15:39:51Z")
Resurrecting this thread due to news today: the DC Circuit Court of Appeals will [re-hear](http://talkingpointsmemo.com/dc/dc-circuit-grants-en-banc-halbig) this decision, which will likely go in favor of ACA supporters. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 4, 2014, 3:48pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/296 "2014-09-04T15:48:46Z")
> [@iiandyiiii](#): > > Resurrecting this thread due to news today: the DC Circuit Court of Appeals will [re-hear](http://talkingpointsmemo.com/dc/dc-circuit-grants-en-banc-halbig) this decision, which will likely go in favor of ACA supporters. It was expected that they would rehear the decision. What was not expected is that the ruling of the three-judge panel was invalidated; it essentially didn’t happen. I’ve read that this means the Supreme Court is less likely to take up the dispute after the DC Circuit makes its ruling. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 4, 2014, 7:05pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/297 "2014-09-04T19:05:20Z")
> [@Marley23](#): > > It was expected that they would rehear the decision. What was not expected is that the ruling of the three-judge panel was invalidated; it essentially didn’t happen. I’ve read that this means the Supreme Court is less likely to take up the dispute after the DC Circuit makes its ruling. When a decision goes en banc it automatically invalidates the previous decision. I think that’s fairly standard if I recall correctly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 4, 2014, 7:14pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/298 "2014-09-04T19:14:09Z")
> [@Marley23](#): > > It was expected that they would rehear the decision. What was not expected is that the ruling of the three-judge panel was invalidated; it essentially didn’t happen. I’ve read that this means the Supreme Court is less likely to take up the dispute after the DC Circuit makes its ruling. Who didn’t expect it? The decision to re-hear a case _en banc_ and re-issue an opinion always means the panel opinion is withdrawn. The panel speaks for the court. Now the court is going to speak for the court. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 4, 2014, 7:21pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/299 "2014-09-04T19:21:51Z")
> [@Bricker](#): > > Who didn’t expect it? [Opponents of the ACA were fighting against this.](http://thinkprogress.org/justice/2014/09/04/3477801/breaking-federal-appeals-court-withdraws-decision-defunding-obamacare/) Is what’s being reported here incorrect? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 4, 2014, 8:18pm UTC](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740/300 "2014-09-04T20:18:29Z")
> [@Marley23](#): > > [Opponents of the ACA were fighting against this.](http://thinkprogress.org/justice/2014/09/04/3477801/breaking-federal-appeals-court-withdraws-decision-defunding-obamacare/) Is what’s being reported here incorrect? I think you may be getting two concepts confused. The winning side from the DC Circuit’s panel opinion was urging the DC Circuit to NOT re-hear the case _en banc_. This is, I would venture to say, the position taken by virtually any party who wins a federal circuit panel decision. The losing side from the DC Circuit’s panel opinion was urging the DC Circuit TO re-hear the case _en banc_. This is, I would venture to say, the position taken by many parties who have lost. An automatic consequence of the decision to re-hear the case is that the panel opinion is withdrawn. You said, “It was expected that they would rehear the decision. What was not expected is that the ruling of the three-judge panel was invalidated; it essentially didn’t happen.” One of those two statements isn’t true, unless you’re changing the person or party who was ‘expecting’ in between sentences. Anyone who expected the DC Circuit to rehear the case also expected the ruling of the three-judge panel to be invalidated as though it essentially didn’t happen. Anyone who did NOT expect the DC Circuit to re-hear the case could, I suppose, be said to have “not expected” the panel decision to be withdrawn. But even such a person would agree that his “not expectation” arose from his belief that the _en banc_ court would not re-hear, not out of some belief that even if they re-heard it, the original panel decision would somehow remain in effect. [Previous page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=14) [Next page](https://boards.straightdope.com/t/halbig-v-burwell-ruling-against-obamacare-subsides/693740.md?page=16)