Hobby Lobby is small potatoes

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The Supreme Court heard the Hobby Lobby challenge to ObamaCare’s religious exemption rules on abortion drugs yesterday to great fanfare. People of faith are hoping, and I expect praying, that the Supremes will overturn the ObamaCare rules requiring businesses to provide contraception, including drugs that cause abortion without regard to the religious beliefs of the business owners who are paying for the insurance.

Hobby Lobby is an important case, but it’s not going to put a dent in ObamaCare one way or the other. No matter what the Supremes decide, ObamaCare will be with us after the decision is published. The overall impact will be miniscule.

Another case was heard yesterday by the DC Circuit Court that is far more important than Hobby Lobby if you’re interested in stopping ObamaCare in its tracks. That case, Halbig v Sebelius, could well put ObamaCare out of business for good.

It’s a very simple case and doesn’t involve any of the colorful issues in Hobby Lobby. It has nothing to do with religious freedom or women’s rights. It is focused on the very boring topic of black letter law.

Michael Cannon of CATO lays out the particulars.

Obamacare authorizes the IRS to provide health-insurance subsidies (nominally, tax credits) to consumers who purchase health insurance “through an Exchange established by the State.” That’s not a drafting error. The subsidy-eligibility rules employ that language a total of nine times, without deviation. The rest of the statue is fully compatible with this language.

The statute is therefore clear and unambiguous: the IRS may issue subsidies in the14 states that established an exchange, but not in the 34 states that left the job of establishing and operating their state’s exchange to the federal government. Congress’ purpose is likewise clear. It wanted states to operate the exchanges, so it conditioned subsidies on state cooperation. Medicaid and countless other federal programs do the same.

The law, as written by Democrats, and only Democrats, late at night in Harry Reid’s office, provides subsidies to ObamaCare insured ONLY in the 14 states where Exchanges have been set up by the state. Any insured person using the federal exchange, the $600 million website that still doesn’t work, is, according to the clear wording of the law, not entitled to a subsidy.

This case will certainly go to the Supremes, and if the Justices have any belief in the Constitutional power of Congress to write laws and the administration to enforce the laws as written, this will be a big loss for the administration.

If the Court finds against Obama, ObamaCare is effectively done. It can’t exist in 14 states and not exist in the remainder and ObamaCare will collapse under its own weight and there’s no unilateral action the President can take to save it.

We certainly hope Hobby Lobby prevails, but the case to watch is going to be Halbig. It could very well do what Republicans – especially Senators like John “it’s the law of the land” McCain – refuse to do.

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