Free Markets, Free People

federal exchanges

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.

~McQ