Skip to comments.ObamaCare’s next court threat
Posted on 07/13/2014 5:19:54 PM PDT by 2ndDivisionVet
A federal appeals court is poised to rule in a case that could blow a gaping hole in ObamaCare's scheme for providing healthcare coverage.
The plaintiffs in Halbig v. Burwell argue that the healthcare law does not authorize the Internal Revenue Service (IRS) to offer premium subsidies on the federal exchanges.
It's an issue that strikes at the heart of the Affordable Care Act's insurance benefits and could potentially end financial help for nearly 5 million enrollees.
That is, if the plaintiffs succeed. Legal experts have generally looked askance at the lawsuit, which has a losing record in federal court so far.
But some believe that a looming decision by the U.S. Court of Appeals for the D.C. Circuit could break that trend. A ruling could come out on Tuesday.
Either way, it's a case that could wind up at the Supreme Court.
"The IRS has arrogated for itself the power to rewrite a federal statute, triggering federal appropriations and financial penalties beyond those authorized by the legislature, wrote Jonathan H. Adler and Michael F. Cannon in an amicus brief to the D.C. appeals court in support of the plaintiffs.
Such 'administrative hubris' cannot stand," they said.
Adler and Cannon, from Case Western Reserve University and the Cato Institute, crafted the legal theory behind the case.
The lawsuit's critics, though, say plaintiffs are missing the forest for the trees.
"Courts do not read statutes by cherry-picking single phrases to defeat the entire purpose of laws," wrote Washington and Lee University Law School Professor Timothy Jost in the Washington Post.
"If one views the totality of the [law] ... it's clear that tax credits are available in the federal exchange."
Court watchers expect Judge Thomas Griffith to be the swing vote in the case.
An appointee of former President George W. Bush, he appeared somewhat friendly to the plaintiffs' view during oral arguments before a three-judge panel.
Still, it is unclear whether the challengers would succeed if the government appealed the case to the full circuit.
The 4th Circuit Court of Appeals is also due to issue its ruling soon in a similar case.
I guess this is the kind of thing you can expect when you pass bills without reading them don’t you think, Nasty Pilgosi?
Also, if the subsidies were to get eliminated obama won't agree to repeal the rest of the law. The Rats will then work state by state to push for exchanges to be set up.
The law does not have a severability clause. If any parts of it goes, it is gone.
That is true, but just as with the Hobby Lobby case, the challenge is not to the statute, but to something the executive has done with or to it. In the case of Hobby Lobby, SecHHS Sibelius directed that abortifacient drugs be considered "basic health care" -- there is no statutory requirement in the "ACA" for them to be covered, the conflict with religious liberty was created entirely by the use of the "as the Secretary shall direct" powers which Congress delegated to the SecHSS. In this case, the challenge is to powers the IRS has arrogated to itself, arguably in violation of both the plain meaning of the statute and its legislative history. If the administration loses on this, the law is still in place, it's just that what's left is an even less workable train-wreck of a law than the thing "fixed" by the IRS's administrative hubis currently is.
Jost “...himself proposed the idea back in 2009, writing that Congress could offer tax subsidies for insurance only in states that complied with federal requirements (as it has done with respect to tax subsidies for health savings accounts). He liked the idea of using Exchange subsidies as a carrot so much, he even proposed Congress could encourage states to create a public option by withholding Exchange subsidies in states that declined: Tax credits could be offered to subsidize the purchase of insurance, but only in states that implemented a public program. “
Timothy Jost: a bad liar, but an enthusiastic one.
Because the mandate was not a part of the law, just the ability for HHS to make requirements, if I understand this correctly.
“I guess this is the kind of thing you can expect when you pass bills without reading them dont you think, Nasty Pilgosi?”
They WROTE it. They read it. It is EXACTLY what they intended. The question here is whether whether laws should be interpreted as they read, or as (some) people would prefer that they read.
This is not a hard call for a court. You do what the law says, and if that’s a problem, then you have Congress FIX THE LAW. And given our RINOs, we probably would change it to what they want.
5 million enrollees? Typical glib DC media rubbish.
Dude, I’ve always felt thst Roberts was far craftier than you realize.
He got the liberal wing of the court to agree to a dramatic curtailment of the Commerce Clause, plus a prohibition against forcing states to accept the Faustian bargain about Medicare and Medicaid. All in exchange for buying into Obama’s b-llshit claim that the mandate was a tax.
If the SCOTUS throws out the entire law next year due to Harry Reid ignoring his duty under the Establishment Clause, then you will be singing Robert’s praises for a brilliant two strokes.
I might be wrong about this but I sure hope I’m right.
SEC. 1401(a) In General.--Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 (relating to refundable credits) is amended by inserting after section 36A the following new section:
SEC. 36B (a) In General.--In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year. (b) Premium Assistance Credit Amount.--For purposes of this section-- (1) In general.-- <> The term `premium assistance credit amount' means, with respect to any taxable year, the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year. (2) Premium assistance amount.--The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of-- ``(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer's spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or ``(B) the excess (if any) of-- ``(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over ``(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer's household income for the taxable year.
36B(b)(2) specifies the premium assistance amount is equal to the lesser of "A" or "B" [that is: the lesser of SEC. 36B(b)(2)(A) or SEC. 36B(b)(2)(B)].
How to you suppose that the premium assistance credit amount of the taxpayer is the lesser of their premium under (A) [explicitly specified as a state exchange under 1311], or (B) [which is claimed includes federal plans]? Is the taxpayer in both a state and federal exchange and whichever is the lesser premium applies?
If the claim that 36B(b)(2)(B) includes federal exchanges is correct, then 36B(b)(2)(A) must also include federal exchanges, something it explicitly does not do. Therefore 36B(b)(2)(B) must necessarily also refer to Exchanges established by the State under 1311, otherwise 36B(b)(2) would be meaningless because a taxpayer can not be enrolled in both a state and federal exchange and whichever is the lesser premium applies.
The PPACA explicitly allows tax credits for state-run exchanges and excludes such credits for federally run exchanges.
>> "Courts do not read statutes by cherry-picking single phrases to defeat the entire purpose of laws," wrote Washington and Lee University Law School Professor Timothy Jost in the Washington Post.
The statute as written expresses Congress' intent. The courts can not read out of the statute clauses and introduce absurdities where non exist just to satisfy what you claim is Congress's intent, Mr. Jost.
Jost expects us to believe that “Exchange established by the State under 1311” includes “Exchange established by the Federal government under 1321 “
Like abortion bans, immigration or homosexual marriage bans?
I don't believe Roberts can see around corners that Alito, Scalia, or Thomas can't. Scalia is probably the smartest guy on the court. I believe Roberts was coerced in his original decision and whatever is being used still exists.
If the SCOTUS throws out the entire law next year...
Even if they rule that the subsidies are not allowed in states that did not set up exchanges the law will still exist. Obama won't care how it will hurt people, or insurance companies. He will not sign any repeal. If this mess collapses obama and the Rats will just push for complete govt control. The liberal chant will be "we should just expand Medicare".
I hope I'm wrong, but I don't think so.
“A ruling could come out on Tuesday”
It was supposed to be Friday originally.
I felt that Roberts should have killed Obamacare right then and there, to Hell with public opinion and his Irish adoptive kids.
Thank you !
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.