Healthcare.gov is Working Fine!

Halbig v. Sebelius is pending on cross-motions for summary judgment; a hearing on the motions in scheduled for next week. Halbig is one of four cases challenging federal rules that would make Obamacare subsidies (and hence certain employer mandates) applicable under federal as well as state exchanges, in the teeth of the statutory text. I’ve written about it here and there.

The defendants’ briefs, plus two amicus briefs by Families USA and the American Hospital Association (AHA), were filed on November 12 and 13. (The briefs, as well as the plaintiffs’ devastating November 18 brief, are available here.) Upon information and belief, not all was going well with the exchanges at the time. But you wouldn’t learn that from the briefs. The government and its friends cheerfully recite experts’ confident pre-rollout predictions of all the good things the exchanges would do. Affordable insurance would cover the great land like a comfy blanket—if it weren’t for plaintiffs’ unconscionable campaign to take money away from the destitute. Really.

The government’s submissions to date illuminate the scope of the ACA’s problems on this planet. For reasons having to do with one of the plaintiff’s standing to sue, the government has submitted three consecutive affidavits by Mr. Donald Moulds, calculating the subsidy said plaintiff would obtain under the government’s interpretation of the law. Within six weeks, the declarant came up with three very different numbers. Mr. Moulds is an HHS Assistant Secretary; and in a high-stakes case and under oath, he can’t figure out the amount for a single individual. In that light, the only good thing to be said about healthcare.gov is that it doesn’t work. Once it does, it will generate random numbers and the IRS will cut checks for billions of dollars, sight unseen: hurrah.

Amicus Families USA professes to represent the interests of health care consumers and reforms “to achieve universal health care insurance.” Inasmuch as that enterprise seems to be backfiring, it is good to know that “Families USA actively supported the Affordable Care Act.” Hopefully, there’ll be a reckoning some day, and inquiring minds will want to know which Beltway bandit was on what side.

Speaking of whom: amicus AHA urges that a subsidy stream to millions of consumers shouldn’t be blocked on behalf of the “idiosyncratic few.” Those “few” include the millions of young folks the health care-industrial complex hopes to frog-march into policies that are demonstrably disadvantageous to them, as well as the millions who have just lost their insurance on account of this carefully wrought scheme.

Never mind, says the AHA: pacta sunt servanda. Back in 2010, we (AHA) agreed to huge Medicare cuts on the understanding that the money would flow to the uninsured, and thus back into our pockets. Can’t break the bargain. I’m not making this up: go read the brazen stuff on pp 11-12 of the AHA brief.

“If you like your special interest group deal, you can keep it?” Washington, or in any event the ACA, doesn’t work that way: go ask the “idiosyncratic few.” And unlike those “few,” the numerous lobbies that midwifed this monstrosity deserve every last thing that’s coming to them.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. gabe says

    Michael:

    Well, there is this to be said for them: They are being honest about their thievery.
    I guess that is what is meant by the “new transparency.”
    I’m luvn’ it!!!!

    take care
    gabe

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