Words mean what they say. That's the basis for the decision of the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell invalidating the Internal Revenue Service regulation approving subsidies for Obamacare consumers in states with federal health insurance exchanges.
The law passed by Congress, Judge Thomas Griffith explained, provided for subsidies in states with state-created exchanges, but not in states with federal exchanges. That's factually correct, and under the Constitution, the government can't spend money not authorized by Congress.
This has not prevented Democrats from calling the decision "judicial activism," which makes as much sense as the claims that the Supreme Court decision overturning the Obamacare contraception mandate cuts off all access to contraception.
"We reach this conclusion," wrote Judge Griffith, "with reluctance." Judge Roger Ferguson, writing for the Fourth Circuit whose King v. Burwell decision upholding the IRS was announced the same day, wrote that those challenging the government "have the better of the statutory construction arguments."
One has a certain sympathy with both judges. They're being asked to overturn a regulation that has paid most of the cost for health insurance for some 4.7 million Americans. But the problem arose not from sloppy legislative draftsmanship.
Under previous court decisions, Congress can't force state governments to administer federal laws. So congressional Democrats, seeking to muscle states into creating their own health insurance exchanges, chose to provide subsidies only for those states. Those opting for the federal exchange would have to explain to voters why they weren't getting subsidies.
This attempt to muscle the states failed. In August 2011, when the IRS issued its regulation, only 10 states had created their own exchanges, and 17 states explicitly refused to do so. Health and Human Services Secretary Kathleen Sebelius kept extending deadlines to force states to create their own exchanges.
Congressional Democrats and the Obama administration bet that they could force the states to do their will. When they lost their bet, the administration ignored the Constitution and ordered the spending of monies that Congress never authorized.
This was lawless behavior, and reckless as well. It promised to individuals acting in reliance on government regulations money that was subject to being clawed back if a court applied the statute as written.
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