Free Markets, Free People

The (potential) unravelling of ObamaCare

In the DC Circuit this week:

The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.

The highly anticipated opinion in the case of Jacqueline Halbig v. Sylvia Mathews Burwell reversed a lower court ruling finding that federally run exchanges did have the authority to disburse subsidies.

Today’s ruling vacates the Internal Revenue Service (IRS) regulation allowing the federal exchanges to give subsidies. The large majority of individuals, about 86 percent, in the federal exchange system received subsidies, and in those cases the subsidies covered about 76 percent of the premium on average.

The essence of the court’s ruling is that, according to the law, those subsidies are illegal. They were always illegal, and the administration never had the authority to offer them. (According to an administration official, however, the subsidies will continue to flow throughout the appeals process.)

Don’t get to excited about this yet.  It was a 3 judge panel. And it will likely go to the Supreme Court. Finally, in a different Circuit (4th) a ruling says the subsidies are legal:

A different circuit court ruled today that subsidies offered through federally run exchanges are authorized on the law. This creates a circuit court split, which increases, but does not guarantee, the chances of an eventual hearing by the Supreme Court. It is also possible, and arguably even more likely, that the circuit split will be dealt with via en banc review.

Bottom line: a heavy shot across the bow of the sinking ship ObamaCare.  If the DC Circuit finding survives the review and an appeal to the Supreme Court, then foundering ship will take the next shot below the water line.  As for the law, it’s not going to get changed anytime soon with a Republican House.

As for the law, the DC Court said it was pretty clear to them:

“We conclude that appellants have the better of the argument: a federal Exchange is not an ‘Exchange established by the State,’ and [the relevant section of the law] does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges,” the decision says.

The law “plainly makes subsidies available only on Exchanges established by states,” the ruling says. “And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. To hold otherwise would be to say that enacted legislation, on its own, does not command our respect—an utterly untenable proposition.”

Plain law, literally interpreted and applied.  Certainly not what we’re used too.  So let’s see how convoluted this gets moving up the line.  My guess is it will be unrecognizable after the lawyers begin to redefine terms and words and make their arguments.  By the end of it, it wouldn’t surprise me in the least to learn that “federal exchanges” now means whatever the IRS wants it to mean.  But clearly, the way to kill this monstrosity is to starve it.  And the way you starve it is to defund it … even if you have to do it bit by bit.


12 Responses to The (potential) unravelling of ObamaCare

  • So let’s see how convoluted this gets moving up the line.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • If the D.C. Circuit does re-hear the case en banc, it may reverse today’s panel decision. If that happens, there will no longer be a split between the circuits, but one would think the Supreme Court will take the case regardless. In that event, we may be back in familiar territory, with Justice Anthony Kennedy deciding what Congress had in mind. If you think that discerning Congress’s intent is, in this case, a fool’s errand, since no one in Congress had read the law before voting on it, you are probably right. Which is one reason why courts look to the words of a statute rather than to the subjective intentions of 535 legislators. Given that Justice Kennedy was willing to deal Obamacare what he thought was a death blow under the Commerce Clause, Democrats cannot view their ultimate prospects with much confidence.
    One of the more salient comments I’ve read about the DC Circuit decision is that they just applied ObamaDoggle as written…dammit…!!!
    To get to the OTHER opinion, you have to find that the words in the bill don’t mean what they say.  But they do say what they say, and no court is allowed to change them.
    Me?  I go back to my position.  I will not comply.  I will not conform.

    • ”  I will not comply.  I will not conform.”
      You just wait till the activist Obama appointed judges en banc overrule those damned to hellfire Bush appointed activist judges!
      Submit!  or die!  Christian dog!
      Sorry, my apologies, that’s for the Sharia law cases.

      • Which is a further view for the insanity of the left from the previous post about leftists – that their activist judges will soon put an end to the rulings of the conservative activist judges!
        They see nothing wrong with lamenting what they view as activism so long as it serves their purposes, and they’re too stupid to realize they’re saying it, or they do realize it without understanding what it proves about them.

      • Yeah, damned “activist judges” anyhow.  Who do they think they are, telling the IRS they have to be governed by the words on an act of Congress…

        • or that the words mean what they mean.   Ridiculous!
          Words must mean what we want them to mean according to what we want at a given point in time!

          • Paul Mirengoff over at PowerLine quotes an old judge saying what I think…
            “…if the legislature didn’t intend for a statute to mean what it says, it should have said so.”
            Pretty hard to argue with that…

    • So, now we know why Reid did the nuclear option and packed the DC court, breaking the agreement to have it not be fully filled.
      Now, that could have been a desperation move, or it could have been a calculated one, in that it would give the ACA a year or two of life as the appeals, etc. slowly wend their way through the system.
      Sure seems like a lot to give up for a year or two.
      I’m guessing the Supreme Court declines to take the case.
      Or, the subsidies having been paid for 2-3 years by that time have a solid 10 million voters who are addicted to them and will complain verily that their healthcare is being taken away, while everyone else is used to paying more money for premiums will have adjusted.
      Not a bad plan. Especially if a Republican Senate attempts a nuclear option and the press becomes suddenly angry. (You know they will. Expect 120 days of front page stories at the NYT.)
      Guys, the experiment is nearing its end.

      • There is still “Irish democracy”, otherwise known as civil disobedience.
        Remember Prohibition.
        Plus, that which cannot continue won’t.  ObamaDoggle is what we called in biology a “lethal”, or a flawed thing that cannot live.

        • “Plus, that which cannot continue won’t. ”
          Contrary to progressive thinking and gentry hopes, there IS a breaking point.
          Think, when the last time you heard about masses of people getting their water shut off in a major city and the UN being called in – in the UNITED STATES.     Not internet, not EBT, WATER.
          Uh, never in my lifetime?
          Now I understand a lot of that is probably self inflicted, but however we got here, we have NOT been here before.
          The circus IS burning, the smoke just hasn’t gotten into the big top yet.

  • It will found to be the subsidy equivalent of tax withholding where money transfers now and you level up later.  J. Roberts

  • jpm100-

    Yeah, I was gonna do some snarking about how our noble Chief Justice would announce “but if you stand on your head and close one eye, it’s a tax. So — it’s OK”.