Skip to comments.Will "Halbig" Be Obamacare’s Undoing?
Posted on 07/16/2014 3:43:52 PM PDT by TurboZamboni
What if Obamacare subsidies disappear? This week a critical decision is expected on Halbig vs. Burwell, formerly titled Halbig vs. Sebelius. The case challenges the IRS for providing millions of dollars in Obamacare subsidies to people in 36 states through the federal exchange, Healthcare.gov. Waiting in the wings is Pruitt vs. Burwell, a case filed by the Oklahoma Attorney General that also challenges the subsidies. One or both cases could end up in the Supreme Court.
Halbig plaintiffs say the law allows subsidies only through a state exchange. And because the mandate and its penalties are hinged on the existence of Obamacare premium subsidies, actually called Advanced Premium Tax Credits (APTC), Halbig claims harm done. Without subsidies, there's no mandate and no penalties. (see press release below)
The authors of Obamacare thought they were being clever -- twice. First, they established the state health insurance exchanges with language making it appear as a mandate (Section 1311). Then because the U.S. Constitution prohibits the federal government from "commandeering" a state through such a mandate, they created the federal exchange as a fallback position in a separate section of the law (Section 1321).
They hoped states would accept the mandate, never see Section 1321, and forget the Constitutional prohibition on commandeering. They never intended to build a federal exchange (now called Healthcare.gov) and they gave themselves no money to do so. Thus, as they testified, 30-40% of it is not even built.
(Excerpt) Read more at healthenews.cchfreedom.org ...
Will there ever be a decision? I’ve been hearing it should come since last week...Friday...Maybe Monday...it’s Wednesday now, and still nothing.
No chance that Roberts will flip and vote to throw out Obamacare based simply on the fact that no one read it before passing it.
I’ve been patiently waiting for this. Will be in the next two days IIRC b/c the court finishes this “session”?
I’m also waiting for the one that challenges whether this revenue bill [remember it “taxes” now?] is valid b/c it did not originate in the house.
It was a house bill that was 100% stripped clean of contents, renamed, and Senate inserted the tax bill 0bamacare. IIRC it’s in fed courts now. But I don’t remember specifics...
The Emperor answers to no one, judicial, legislative, those are hindrances to Presidents not him.
With a twinkle in his eye, the necessary changes will magically happen, all will marvel at the Emperors abilities.
No. There is too much money, political momentum, and government infrastructure behind Obamacare to kill it off by some judges citing some antique, irrelevant Constitution. Besides, the majority of judges seem to be invested in a "living constitution", anyway.
So, no chance. Sorry. Originalism died with Wilson and FDR.
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 due 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 amount applies.
The PPACA explicitly allows tax credits for state-run exchanges and excludes such credits for federally run exchanges.
The IRS makes the absurd claim that Exchange established by the State under 1311 includes Exchange established by the Federal government under 1321"
Courts can not read out of the statute clauses or introduce absurdities where non exist just to satisfy what an agency, the IRS, claims is Congress's intent. The statute as written expresses Congress' intent.
The undoing of Obamacare will be the day that the American People get tired of eating sh&t sandwiches.
Thanks for your analysis. However, we are in an era where anything goes, and despite any clear text in the law that would support Halbig’s position, it doesn’t matter. The courts will find something, ANYTHING, to support the administration’s position. Obamacare will not be allowed to be overturned on such a “technicality”.
Then there is the ammo box.
So when does the ruling FINALLY get handed down? I have seen reports that TODAY is the final day possible but so far...NOTHING.