Can the White House simply declare that the federal government is the 51st state? A defining feature of President Obama's second term is his willfulness in defying limits on executive power to suit his political goals, and no more so than with the Affordable Care Act. The judiciary is the last check on those abuses, and this week it will have another opportunity to vindicate the rule of law.
On
Tuesday the D.C. Circuit Court of Appeals will hear one of the more
important legal challenges to ObamaCare's lawless implementation. Unlike
the challenge to the individual insurance mandate, Halbig v. Sebelius
involves no great questions of constitutional interpretation. The
plaintiffs are merely asking the judges to tell the Administration to
faithfully execute the plain language of the statute that Congress
passed and President Obama signed.
***
The Affordable Care Act—at least the version
that passed in 2010—instructed the states to establish insurance
exchanges, and if they didn't the Health and Human Services Department
was authorized to build federal exchanges. The law says that subsidies
will be available only to people who enroll "through an Exchange
established by the State." The question in Halbig is whether these taxpayer subsidies can be distributed through the federal exchanges, as the Administration insists.
Prior
to passage, Democrats were divided over the structure of the exchanges,
with liberals favoring a national clearinghouse and moderates state
control. The federalists won and conditioned the subsidies on
state-based exchanges.
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