Posted on 01/28/2015 2:04:31 PM PST by SeekAndFind
Remember the issue in Halbig? There’s a section in the ObamaCare statute that says federal subsidies to pay premiums are available to anyone who buys their insurance through “an Exchange established by the State.” But that phrase is vaguely worded. Is the federal ObamaCare exchange, Healthcare.gov, an exchange established by the state? Or was the idea that subsidies should apply only to exchanges created by the individual states, as an economic incentive to encourage state governments to create their own insurance marketplaces? You know what Jonathan Gruber thinks, or thought, about that. By this summer, we’ll know what John Roberts and the gang think too. If subsidies for federal consumers are suddenly illegal, people who can’t afford the unsubsidized premiums will begin dropping their plans and bailing out of the program. The whole scheme could collapse.
Which puts Mitch McConnell and John Boehner in a spot. If SCOTUS sides with conservatives and ends up nuking subsidies for millions of federal exchange consumers, this hot potato will land squarely in their laps. Here’s what the Kaiser Family Foundation found when it asked people whether Congress should fix the O-Care statute to extend subsidies to those federal consumers if the Supremes rule in favor of ObamaCare’s opponents. Gulp:
Support for a legislative fix is running above 60 percent among independents. Among the GOP, a party which treats opposition to ObamaCare as one of its core issues, support is at a surprising 40 percent. The Halbig case is a simple matter of statutory construction, not a constitutional case, so if SCOTUS concludes that the federal exchange is not “an Exchange established by the State,” there’s nothing stopping Congress from amending the statute to make clear that it is. That would restore all of the subsidies to federal consumers that the Court had stripped. And since both chambers of Congress are now controlled by Republicans, that means it’ll be up to Boehner and McConnell to decide how to proceed. If they restore the subsidies, the party will fracture; it’ll be the ultimate betrayal of conservatives, an ObamaCare-destroying gift from the Supreme Court that our RINO leadership decided to hand back. If they don’t restore the subsidies, well, look again at those poll numbers. How do you think the millions of voters who’ve just lost their subsidies will react to the GOP giving thumbs down to bringing them back, especially with Obama and other Democratic leaders hammering Republicans over this on the campaign trail?
Luckily, there’s another solution available: Congress could pass the hot potato to the state governments. Why do you need Congress to restore federal subsidies, Boehner and McConnell will say, when the individual states could just build their own exchanges and secure federal subsidies for their residents that way? Problem is, thanks to November’s epic red wave, most of the states (especially the states that haven’t already built their own exchanges) are controlled by Republicans too. So all we’re doing is passing this problem from one tier of the party to the other. And the numbers there aren’t great either. Here’s the result when KFF asked people who live in states without their own exchange whether the local government should create one if the Halbig case comes out the wrong way. Note the last line at the bottom.
Even among Republicans, there’s a clear majority who want to keep their subsidies flowing even if that means buying into O-Care by having the state government build its own marketplace. Think GOP governors are looking forward to SCOTUS ruling “their” way?
The mystery in all of this is how Obama will react to an adverse decision. The obvious play to maximize Republican political pain is to shrug, do nothing, and say that it’s out of his hands now. Only the GOP Congress can solve this problem by fixing the statute, and if they refuse, then, well, perhaps subsidy-hungry Americans should just elect a Democratic Congress in 2016 instead. It could be, though, that His Majesty won’t be able to resist issuing a new royal edict that presumes to fix the statute’s language unilaterally. Lefties have been chirping lately that there’s not much room for executive action to solve this problem, but they always say that before he does something brazen in stepping on Congress’s prerogatives. It happened with amnesty too: First he spends a few months insisting there’s nothing he can do legally, then the politics change in a way that makes him think he can get away with action, and then suddenly he’s on TV insisting that we’ve reached a crisis point that leaves him with no choice but to act. He’ll be tempted to do the same thing after Halbig. If SCOTUS says that the statute as written isn’t clear enough in treating the federal exchange as “an Exchange established by the State,” O could try issuing some dubious order “temporarily” designating the federal exchange an “Exchange established by the State” to minimize disruption to consumers while Congress and the states figure out what to do. Would that be legal? Probably not. But it’d take years, probably, for that suit to wind its way back to the Supreme Court, and in the meantime plenty of legislators in both parties would be grateful that the lame duck had spared them from a knotty political problem. In the end, that executive order would be as “temporary” as his executive amnesty is. I’ll be surprised if he doesn’t try it.
Democrats OWN PPACA. It's 100% theirs.
This article is full of BS.
drivel
the upside for the many far out weighs the downside for a very few
Who says SCOTUS has to be consistent in their “interpretations”? If they decide it isn’t “fair”, they will find a legally justify it.
It’s all about how the questions are framed.
Well, we’ll find out in June how the Supremes rule on the case.
Make that “a way to legally justify it”.
You are about 75% right about all this.
But the 25% you didn’t mention is a killer.
1) Yes, it is anathema to the GOP to wind up supporting subsidies.
2) Yes, the states without exchanges could create them and solve the problem, but as the article mentions, this would hurt the lower tier GOP at the state level.
3) The big kicker for the 25% is this is not just about polling and people wanting free stuff. This is also a major Constitutional issue re: equal protection. States who DID create exchanges will get subsidies to their voters. States without will not and this is not going to be allowed. An instant lawsuit under the equal protection law will certainly pass all levels of courts.
This is somewhat the GOP’s way out. They will be forced Constitutionally to restore subsidies. The state level would be best. Or squirm around it by saying the Constitution requires equal protection so the subsidies will be extended to all states temporarily.
The Constitutional requirement is how they will avoid the wrath of the right wing.
We’ll have to see the court decision, but it may make the individual mandate invalid in federal exchange states. These states could allow for the creation of non-conforming plans or people could go without insurance. This would be a good deal for most people because most 0-care policies have high deductibles.
Are you insane?
“Millions of people are going to be affected if the Supremes rule against Obamacare in June as is widely anticipated. I think the polls reflect the realization that many if not most of these millions will not be able to afford their Obamacare Health Care Plan and will drop it. A disaster for them and for the Insurance Industry.”
A good analysis on your part; however, do you really think the average citizen understands all the facts outlined in your post? I don’t. That’s why I believe that this poll is made-up garbage.
Some think so, but Equal Protection and the Commerce Clause is pretty powerful stuff. You know damn well a lawsuit will be filed under that aspect and will fly through the courts.
They are going to do extensions to buy time or they are going to provoke a Constitutional crisis when the USSC orders the subsidies to all and they in some way refuse.
Well then that 64% can elect a socialist Congress.
There is no equal protection question. Equal protection means equal application of the law, not that a law must treat every class of person in the same manner.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That’s the Equal Protection clause. And that’s why states without exchanges will somehow have to get subsidies to their citizens, equivalent to subsidies rec’d by other US citizens in other states.
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“My guess is that SCOTUS will rule that excluding people who buy from the federal exchange from getting subsidies violates the equal protection clause of the 14th amendment.” ******************************************************************************************************
You do realize that there exist NUMEROUS federal statutes that provide subsidies and benefits to a state’s residents IF the state takes certain action - and precludes those benefits if the state does NOT take the specified action. These statutes and rules have existed for decades without equal protection being effectively raised as an issue.
The incentives in the Affordable Care Act to “incentivize” the states to set up their own exchanges are just one more of this type of statute.
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This sounds correct to me. What say you?
No I don't. But I believe the Pollsters explained it when the poll was taken. You are certainly right that this issue is not on the front burner of the American public or are they likely to really understand the issue.
But I think they will if the Supremes rule as expected. It will be big news. The Left and MSM will go crazy.
Democrats OWN PPACA. It’s 100% theirs.
PPACA is not a state law.
That will be the reason they won’t vote to repeal. They’ll claim they do not have a replacement.
“...This sounds correct to me. What say you?”
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It not only sounds correct, it IS correct. There is a similar incentive “trap” going on now related to Medicaid. Some states have fallen into the trap and others haven’t. Specifically it the state agrees to expand its Medicaid eligibility to certain new categories of individuals, the feds will cover a large (90%?) of the costs for several years after which the fed cost coverage will phase out but the state would be required to continue the coverage with its own funds. Many states have not fallen into this honey trap and thus their citizens in the new categories can NOT get Medicaid in their state whereas residents of the states that HAVE fallen into the honey trap CAN get Medicaid. Depending upon which state you reside in you may or may not be eligible for Medicaid. THERE IS NO “EQUAL PROTECTION” ISSUE WITH THIS DISPARITY IN TREATMENT. All individuals in the “new categories” can get Medicaid IF, AND ONLY IF, they decide to reside in a CONFORMING STATE. Those states are, of course, merely accelerating their rush into insolvency.
AND THE SAME PRINCIPLE APPLIES TO OBAMACARE SUBSIDY ELIGIBILITY (AND OBAMACARE PENALTIES) - THEY DEPEND UPON WHETHER THE GIVEN STATE HAS ESTABLISHED A STATE EXCHANGE.
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