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July 23, 2014 3:35 PM Don’t Expect Captain Ahab To Save Moby Dick

By Ed Kilgore

At Lunch Buffet I deployed a mocking tone in linking to Ezra Klein’s Vox piece suggesting that the DC Circuit three-judge panel’s decision in the Halbig case couldn’t possibly stand because it represented stupid reasoning and would horribly affect millions of people. He’s right about the reasoning and the impact, of course, but expecting that to sway Obamacare’s enemies is like expecting Captain Ahab to worry about the ecological consequences of bringing down Moby Dick.

Also at Vox, Matt Yglesias warns progressives who think a “fix” could correct the Halbig ruling if it stands that they are really not paying attention to how conservatives feel about the Affordable Care Act:

In a less polarized political climate, the stakes of the legal decision would be much lower. You would expect members of congress to respond to the Halbig ruling by passing an amendment to bring the text into clearer alignment with its goals. And even if congress failed to do so, you would expect the vast majority of states currently using the federal exchange to simply switch to a state exchange in order to make their citizens eligible for subsidies.
In that kind of climate, opinions about Halbig would be driven by feelings about the best approach to statutory interpretation — a question about which almost nobody has strong feelings. But in our actual climate, upholding Halbig will render Obamacare non-operational in a great many states. And most people — especially politically aware people — have much stronger views about Obamacare than about edge cases in the world of statutory interpretation. Our tribal instincts are activated.

Indeed, Yglesias notes these “tribal instincts” could well sway Chief Justice John Roberts if Halbig ultimately goes to the Supreme Court, which is a better than even bet at the moment. Seriously: does anyone seriously think Roberts is immune from the kind of unholy hell that would descend upon him from long-time friends and colleagues if he saved the Affordable Care Act for a second time?

It’s obviously laughable to think that congressional Republicans would allow a legislative fix to counter an adverse decision in Halbig. As for Republican-governed states, the likelihood that many would rush to create state health care purchasing exchanges to protect their own citizens from losing health insurance is best measured by this comment from Florida Senate president Don Gaetz (quoted by Dave Weigel):

I will never support the state of Florida serving as the instrument by which individuals and businesses are forced into a federal mandate to purchase a health insurance product they may not want. Maybe I’m just partial to the legislative process designed by our founding fathers, rather than the dictates of unelected bureaucrats who seem to change the application of this law as often as President Obama plays a round of golf, but perhaps we ought to look to those members of Congress who not only supported this law but suggested that it be voted on before it was read and see if they can suggest a legislative solution.

Most Republicans would greet the human catastrophe of an upholding of the D.C. Circuit panel’s ruling in Halbig by firing their Open Carry guns in the air and snake-dancing to the nearest public square for a hoedown with speechifying. Anyone who thinks otherwise must assume conservatives have been playing an incredibly elaborate practical joke for the last four years.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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