Halbig v. Sebelius is one of two federal lawsuits challenging an illegal IRS rule that attempts to issue ObamaCare’s tax credits in the 34 states that have opted not to establish one of the law’s health insurance “exchanges.” Yesterday, attorneys for the Halbig plaintiffs filed a motion for a preliminary injunction, requested a hearing on that motion before October 1, and filed a second motion also seeking to expedite the case. The first motion requests:
an Order enjoining [the government], pending resolution of the litigation, from applying the IRS regulations extending eligibility for premium assistance subsidies under the Patient Protection and Affordable Care Act to individuals who purchase health coverage through Exchanges established by the federal government.
If the court grants that request, ObamaCare implementation will come to a screeching halt.
The Halbig plaintiffs make a compelling case that the IRS is violating federal law, and that the court must resolve the issue before January 1, 2014. If a resolution comes after that date, the plaintiffs will be irreparably injured because they “will be forced either to comply with the ACA’s individual mandate or risk incurring a penalty, and…will further be entirely and forever precluded from purchasing catastrophic coverage for 2014.” In addition:
the balance of the equities and public interest both cut strongly in favor of resolving the legal validity of the IRS Rule now, before billions of taxpayer dollars are illegally expended and before employers make unalterable benefit decisions premised on the Rule. If a ruling invalidating the IRS Rule is delayed until after these events, the result would be utter chaos…It serves everyone’s interests—those of Plaintiffs, the Government, and the public alike—to obtain a prompt ruling on the legal validity of the IRS Rule, so that there will be no need subsequently to confront the logistical nightmare of trying to unscramble and undo the unlawful expenditure of billions of federal dollars. [Emphasis in original.]
Even if the government ultimately prevails, as health‐benefits expert Thomas Haynes explains in a supplemental filing, it would unnecessarily and irreparably injure some employers and employees if that happens in 2014 instead of 2013. Brokers who are aware that the availability of these tax credits is uncertain in 34 states will counsel employers not to adjust their employee benefits to take advantage of that still‐uncertain new landscape. Those employers and employees would then be locked into spending more on health insurance in 2014 than they would if the litigation had been resolved in 2013.
The Obama administration, however, is in no hurry. In Halbig, for example, government lawyers have blown through the legal deadlines for responding to key plaintiff motions, deadlines that passed months ago. Indeed, they appear to be using every tactic at their disposal to guarantee these cases will not be resolved this year.
Whether the Obama administration’s lawyers simply have a lot on their plate, or are intentionally trying to prejudice judges against ruling for the plaintiffs — by guaranteeing that such a ruling would result in maximum chaos — a preliminary injunction is in order.