The D.C. Circuit is due to rule any day now, quite possibly today, on Halbig v. Sebelius. For those who haven't been watching the vigil I keep over at DarwinsFool.com, Newsweek calls Halbig "the case that could topple ObamaCare."
First a little background. The Patient Protection and Affordable Care Act offers refundable "premium-assistance tax credits" to qualified taxpayers who purchase health insurance "through an Exchange established by the State." The PPACA contains no language authorizing tax credits through the 34 Exchanges established by the federal government in states that declined to establish one themselves, nor does it authorize the Internal Revenue Service to treat those federally established Exchanges as if they had been "established by the State." Offering benefits only in compliant states was proposed by numerous Republicans and Democrats in 2009, for obvious reasons: Congress cannot force states to implement federal programs, but it can create incentives for states to act, such as by offering health-insurance subsidies to residents of compliant states.
Halbig is one of four cases challenging the IRS's decision to rewrite the statute and offer tax credits in the 34 states with federal Exchanges. The plaintiffs are individuals and employers who are injured by the IRS's overreach because, due to the PPACA's many inter-locking pieces, issuing those illegal tax credits subjects them to illegal penalties.
Since a ruling may come today (or some Tuesday or Friday hence, as is the D.C. Circuit's habit), here are some materials for those who want to hit the ground running.
- "A Reference Guide To The 'Halbig' Cases: Can The IRS Issue ACA Subsidies Through Federal Exchanges?" is a complete guide to everything ever been written about the Halbig cases. Statutes, legislative history, regulations, court documents, news reports, opinion pieces, everything. A good place to harvest hyperlinks.
- Here are summaries of amicus briefs filed in Halbig by several groups in support of the plaintiffs, and briefs in support of the IRS filed by public-health scholars, members of Congress and state legislators, the hospital lobby, the health-insurance lobby, AARP, left-leaning economists, and Families USA.
- "Who Needs Hobby Lobby When You've Got Halbig? Yesterday's Appellate Arguments In Halbig v. Sebelius" summarizes the oral arguments before the D.C. Circuit.
- "What Kagan And Scalia Might Say About Halbig v. Sebelius" shows how the Supreme Court has recently dealt with issues similar to those presented in Halbig. See also "What the Supreme Court said about the IRS tax credit rule" by Volokh Conspiracy blogger, law professor, and my sometime coauthor Jonathan Adler.
- "King v. Sebelius: If The Plain Meaning Of The ACA Was Good Enough For Congress, Then It's Good Enough For The Fourth Circuit" is a write-up of oral arguments in a similar case (King v. Sebelius) heard by the 4th Circuit.
- "Modern Healthcare's Take On Halbig v. Sebelius Is A Comedy Of Errors" and "In Which Modern Healthcare Questions My Honesty" show how reporters often misstate basic facts about these cases.
- Like the last two, "The IRS's Case In Halbig v. Sebelius Is Crumbling, With A Little Help From Its Friends (UPDATED)" shows how many of the arguments made by the IRS's supporters, including law professors like Yale's Abbe Gluck, actually undermine the IRS's case in court. "Hafa Adai: Obama Administration Contradicts Its Own Brief In 'The Case That Could Topple ObamaCare'" shows that even the Obama administration has gotten in on that game.
- My congressional testimony on "The President's Failure To Execute Faithfully The PPACA" puts Halbig in a broader context.
Update: The D.C. Circuit has handed down rulings for today, and Halbig is not among them. Click here to check on the court's most recent rulings.