The federal Court of Appeals for the DC Circuit struck a major blow against Obamacare this morning in the Halbig case. That ruling decided that subsidies for health insurance can be paid to purchasers only on exchanges established by an individual state (as opposed to the federal government) and the employer mandate applies only in the states with those exchanges. This is a major earthquake which can bring down the entire foundation of Obamacare.
By way of background, one needs to know that the statute expressly limits subsidies to those who buy them on "an exchange established by a state under section 1311" of the act. Ever since the Obamacare act was passed, there has been discussion about whether or not that language could be read to include those who bought insurance on an exchange established by the federal government under a different section of the act. That discussion grew in importance when 34 states decided not to establish their own exchanges. Roughly 200 million Americans live in places where only a federally created exchange exists. Of course, the Obama administration took the usual course of dealing with a problem with the law; they ignored the problem and just changed it to suit their needs. The IRS (was it Lois Lerner?) issued a ruling that stated that subsidies would be available whether or not insurance was purchased on a state created exchange or on the federal exchange.
The effect of the IRS ruling was huge. It meant that subsidies could be given to millions more people. It also meant, however, that many millions more people were subject to the requirement that they had to buy insurance. It also meant that millions of employers also were subject to the requirement that they had to provide insurance to employees.
The problem for the IRS and Obama, of course, was that on this point, at least, the Obamacare law is clear. The law makes a distinction between exchanges established by a state and one established by the federal government. Courts are required to enforce the clear language of a statute rather than to substitute their own view as to what the law ought to be. Where, as is the case here, there is no ambiguity in the words, the court truly has no choice. Unless the result of enforcing the law as written would be so absurd as to make no sense, the court has to follow the law as written.
This battle is far from over. Today's decision will surely be appealed to the entire DC Circuit; in fact, Obama and the Democrats have already prepared for this by adding additional judges to this court and thereby packing the membership with Obama appointees. Even so, the outcome of this appeal is far from certain. And then there is the Supreme Court. No matter how the DC Circuit court rules, the case is likely to go up to the Supreme Court for a final decision. Normally, one would expect a 5-4 decision at that point. I am not so sure. When Obama tried to make recess appointments that were clearly beyond his power, the Court ruled 9 to 0 against him. My guess is that there will be many more than just 5 justices who will require the statute to be enforced as actually written.
Of course, once the Supreme Court rules, this entire matter could be quickly corrected by Congressional action. At that point, however, we are likely to see not just one little amendment to Obamacare. We may finally get to the day when there is a real debate and a real compromise over the future of Obamacare. If Obama does not like the result, he will have two choices: he can swallow hard and accept the result, or he can veto the result and watch as the entire Obamacare structure crumbles across the country. My guess is that Obama will choose to go to a fund raiser instead.
By way of background, one needs to know that the statute expressly limits subsidies to those who buy them on "an exchange established by a state under section 1311" of the act. Ever since the Obamacare act was passed, there has been discussion about whether or not that language could be read to include those who bought insurance on an exchange established by the federal government under a different section of the act. That discussion grew in importance when 34 states decided not to establish their own exchanges. Roughly 200 million Americans live in places where only a federally created exchange exists. Of course, the Obama administration took the usual course of dealing with a problem with the law; they ignored the problem and just changed it to suit their needs. The IRS (was it Lois Lerner?) issued a ruling that stated that subsidies would be available whether or not insurance was purchased on a state created exchange or on the federal exchange.
The effect of the IRS ruling was huge. It meant that subsidies could be given to millions more people. It also meant, however, that many millions more people were subject to the requirement that they had to buy insurance. It also meant that millions of employers also were subject to the requirement that they had to provide insurance to employees.
The problem for the IRS and Obama, of course, was that on this point, at least, the Obamacare law is clear. The law makes a distinction between exchanges established by a state and one established by the federal government. Courts are required to enforce the clear language of a statute rather than to substitute their own view as to what the law ought to be. Where, as is the case here, there is no ambiguity in the words, the court truly has no choice. Unless the result of enforcing the law as written would be so absurd as to make no sense, the court has to follow the law as written.
This battle is far from over. Today's decision will surely be appealed to the entire DC Circuit; in fact, Obama and the Democrats have already prepared for this by adding additional judges to this court and thereby packing the membership with Obama appointees. Even so, the outcome of this appeal is far from certain. And then there is the Supreme Court. No matter how the DC Circuit court rules, the case is likely to go up to the Supreme Court for a final decision. Normally, one would expect a 5-4 decision at that point. I am not so sure. When Obama tried to make recess appointments that were clearly beyond his power, the Court ruled 9 to 0 against him. My guess is that there will be many more than just 5 justices who will require the statute to be enforced as actually written.
Of course, once the Supreme Court rules, this entire matter could be quickly corrected by Congressional action. At that point, however, we are likely to see not just one little amendment to Obamacare. We may finally get to the day when there is a real debate and a real compromise over the future of Obamacare. If Obama does not like the result, he will have two choices: he can swallow hard and accept the result, or he can veto the result and watch as the entire Obamacare structure crumbles across the country. My guess is that Obama will choose to go to a fund raiser instead.
No comments:
Post a Comment