Republicans are Still Trying to Destroy Obamacare, and They're Still Losing

The Republican party’s effort to deny any (if not all) access to affordable healthcare for as many people as humanly (though not humanely) possible took a major blow on Thursday, when the full DC circuit court of appeals decided to review the anti-Obamacare decision issued by  two Republican-appointed judges earlier this year.

Since that opinion made Bush v Gore look like a model of thoughtful jurisprudence, the Obama administration asked the full court to reconsider. It will, and their pending ruling is bad news for conservatives who want to preserve Americans’ precious freedom  to die totally avoidable deaths because they lack health insurance.

“Today’s decision by the DC Circuit to grant en banc review of Halbig v. Burwell is unwise and unfortunate. It has the appearance of a political decision,”  sniffed Michael Cannon of the conservative-libertarian Cato Institute. The chutzpah it takes for one of the architects of the case to accuse the judges who voted to re-hear it of being “political” is like the Atlantic Ocean accusing the creek running behind your house of having too much water.

But nothing will stop the Obamacare truthers – not logic, reason, legal rulings, common sense or human decency.

Earlier this year, based on a hyper-literal reading of an isolated part of the Affordable Care Act, a two-judge panel from the court ruled that Congress did not intend to provide subsidies to participants in federal health insurance exchanges in order to make their insurance affordable – though they did so for state exchanges. Their argument – that Congress went through the trouble to create a federal backstop in case certain states didn’t establish exchanges while intentionally (but secretly) intending for the backstop to fail – is both absurd on its face and  inconsistent with the understanding of literally everyone involved in passing the statute. The only evidence that supporters of that interpretation can cite for their bizarre interpretation of the law is a stray, repudiated YouTube comment by a consultant.

Unlike the bizarre ruling that conservatives loved, the decision to re-hear the case is  legally unassailable: the relevant federal law explicitly says that disagreements between circuits are a legitimate basis for reviewing a decision. And though the plaintiffs in the case first argued that other people should risk their health and lives sacrificed to show proper reverence for the literal text of federal laws, they showed less interest in the language of the law in their legal replies to the request for review. (Pro-tip: When you’re invoking the principle of adherence to the strict letter of the law to justify stripping people of their health insurance, it’s probably best if you don’t discard those principles the moment that they become inconvenient for your political purposes.)

It is unusual for the court to agree to a full review – but it’s also highly unusual for an unrepresentative panel to issue a widely-derided ruling that would have massive policy consequences. If this Obamacare case isn’t important enough to merit a re-hearing, what would be?

The desperation of the great legal minds behind this lawsuit to avoid a re-hearing in court is telling. They know that their argument that millions of people should lose medical coverage because the card says “Moops” (or, in the even more ridiculous version of the argument, that eighth-century Spain was in fact invaded by the “Moops”) has no chance of convincing any judge who isn’t also a fanatical opponent of Obamacare. Indeed, in a rational universe, their arguments would be looked at in the same light as arguments that Obama is ineligible to serve as president because he was born in Kenya.