Questions on the Legality of Federal ACA Subsidies -- Obamacare: The Republican Last Hurrah?

[whateyethynk]

From my blog: www.whateyethynk-politics.blogspot.com

On Tuesday the U.S. Court of Appeals for the District of Columbia Circuit, (2 Republicans, 1 Democrat) ruled that the government cannot give subsidies to people who have signed up for health coverage through a federal exchange--even if their state refuses to create an exchange of its own.

Republicans immediately began celebrating the end of the ACA. Those with a more balanced view of the decision say "not so fast."

what eye thynk: The Court's decision is another example of the creeping politicization of our courts. In this case, the two Republican judges looked, not at the intention of the law as other District Courts have done when ruling; but at the narrow wording--wording which both Democrats and Republicans in congress agree is a simple drafting error.

The law expressly calls for subsidies to be paid to those who sign up for healthcare through their state ACA exchange and who cannot afford the full cost of their health coverage. The law then allows for the federal government to set up exchanges in those states who fail to do so on their own.

Addressing subsidies, Section 1401 says that subsidies will be given to those who purchase insurance "through an exchange established by the state," which suggests that subsidies will originate only through state run exchanges. But Section 1321 reads, in part: (The federal government shall) "establish and operate such Exchange within the State and...shall take such actions as are necessary to implement such other requirements."

As Ezra Klein explained on Tuesday "The key word there is 'such': the Obama administration holds that the clear intent of that line was that a federal exchange counts as a state exchange for the purposes of the law. That may be a bit confusing--but given the context of everything else in the law, it's clear enough."

Unless, of course, you're the Republican Party that has spent four years and bet its entire reputation on making the ACA fail. When you have tried to repeal the act nearly 50 times to no avail, you rejoice when the Halbig plaintiffs grab on to some obscure error in wording and hope they find a Republican judge or two who will buy their argument.

The contention of the two Republican judges in this decision is that, since the law does not specifically say that subsidies may be paid to those signing up through a federally run exchange, those subsidies are illegal. In other words, if you live in a state that has refused to set up its own state ACA exchange, you must pay the full cost of your health insurance.

The fact is, this is a simple drafting error, one that would have been corrected had the ACA been sent to a congressional drafting committee appointed to look for such errors and ommissions. Instead, in order to get the law passed, the ACA skipped the vetting step and the bill was presented to the House for a simple up or down, as is vote.

Senator Max Baucus (D-Montana), who was the primary author of the bill said, "The clear intention of the health-care law is to provide consumers with tax credits to purchase quality, affordable health coverage through either a state or federally-facilitated exchange."

Hours after the DC Court announced their ruling, the District Court in Richmond agreed with Mr. Baucus and issued a decision in favor of subsidies for federal exchanges. "It is...clear that widely available tax credits are essential to fulfilling the Act's primary goals and that Congress was aware of their importance when drafting the bill."

The Obama administration will undoubtedly ask for an en banc hearing where the full D.C. District Court hears the case, not just a three judge panel, with the expectation that the full court will overturn the panel's decision.

Even now, Congress could stop this waste of time and energy. They need only pass a one page addendum specifically stating that subsidies may also be issued by federally run insurance exchanges. But Republicans won't allow that to happen.

Republicans want to keep beating this horse until it finds itself at the door to the Supreme Court. Surely there must be some of their members who believe that the Supreme Court, even in its current highly polarized estate, is not going to deny millions of people affordable health care in order to make a point about proper grammar or clearly worded language.

This is simply a last hurrah in the Republican Party's efforts to keep their base in a frenzy over the President, his Party and his health care law until after the 2014 election. Until, you know, they are back in charge and all is right with the world. When they will stand in their Divinely protected magic forest, surrounded by God's angels and present their own Much-Talked-About-But-Never-Glimpsed Health Care Plan.

Or not.