Hobby Lobby is small potatoes compared to Halbig:
…the Obama administration fears that if consumers in 34 states experience the full cost of Obamacare, Congress will have no choice but to reopen the law. It has therefore offered numerous arguments in defense of its unauthorized spending and taxes – not because any of these arguments have merit, but because none of them do.
Nevertheless, a district court ruled against the Halbig plaintiffs based on a severely distorted view of Congress’ intent. The court wrote, “there is no evidence that either the House or the Senate considered making tax credits dependent upon whether a state participated in the Exchanges.”
On the contrary, the evidence is clear. The words of the statute themselves show that both chambers not only considered but approved that idea. The senators who enacted Obamacare routinely supported and enacted legislation conditioning health-insurance tax credits and other assistance on states establishing exchanges or taking other actions. The seven members of Congress most responsible for Obamacare – former Senate Finance Committee chairman Max Baucus (D-Mont.), Senate Health, Education, Labor, and Pensions Committee chairman Tom Harkin (D-Ia.), then-House Ways & Means Committee chairman Sander Levin (D-Mich.), then-House Education & Workforce Committee chairman George Miller (D-Calif.), then-House Speaker Nancy Pelosi (D-Calif.), Senate Majority Leader Harry Reid (D-Nev.), and then-House Energy and Commerce Committee chairman Henry Waxman (D-Calif.) – even admit in an amicus brief that conditioning subsidies on states establishing exchanges was part of the congressional debate. Finally, when House Democrats first read the Senate-passed bill – what we now call Obamacare – in 2010, they recognized that it conditions subsidies on states establishing exchanges, and complained that this feature would allow recalcitrant states to block those subsidies. In this instance at least, Congress knew what it was enacting.
This may be the part of the train wreck where it goes off the bridge into the gorge. And it will happen this summer, leading up to the election.
[Update early afternoon]
“What we have here is language that doesn’t seem malleable in any way, shape or form.”
I should note that when I wrote the first part of this post, I thought that the case was already before SCOTUS, but the arguments made this morning are apparently just before an appellate court. But it will probably go to SCOTUS as some point, regardless of that decision.