It all comes down to four crucial words. In 2009, as the Affordable Care Act was being rammed through the Senate, those words made their way into the statutory behemoth. The law says that the federal government has the power to dole out premium-lowering subsidies through those insurance exchanges “established by the State.” Now that thirty-six states have declined to set up exchanges, the implication is that those who purchase insurance from the federal HealthCare.gov website are, under the text of the law, ineligible for the tax credits. Their premiums would be much higher.
As the fallout continues over last week’s Halbig decision by the D.C. Circuit Court of Appeals, so does the walking back of words by Obamacare architect and MIT professor Dr. Jonathan Gruber. The case, which ended with a ruling that Obamacare subsidies can't be distributed in federal exchanges, has the potential to send the health care law into a death spiral. While the right-wing blogosphere celebrated, many on the left and Gruber himself were quick to deflect.
But now they may have an even bigger problem on their hands.
Before the release of contradictory video evidence, Gruber went on MSNBC to defend the law that he helped craft:
CHRIS MATTHEWS: Jonathan, was this a typo saying that only if you had a state exchange you could get a subsidy and therefore be required to participate or was it some significant policy decision not to include states that didn't have exchanges?
Earlier this week, the D.C. Circuit Court of Appeals ruled that the subsidies dispensed by the IRS through Obamacare's federal exchanges were illegal. As the debate raged through the wonk blogs, the left tried to downplay the significance of the case. One of their staple talking points was asking members of the conservative media to find an example of anyone saying that the subsidies were supposed to be limited to state exchanges. Well, over at Reason, an example has been found.
Last night, video surfaced of Johnathan Gruber undermining the entire premise of the government's argument for Obamacare. First, who is Gruber? Reason explains his role:
In two separate rulings today, Obamacare subsidies were both upheld in the Fourth Circuit Court of Appeals and struck down in the D.C. Circuit Court of Appeals. Both cases deal with the textualism versus intent debate—whether judges can claim to divine the intent of legislators when ruling on a law, or have to read only the text in front of them.
In the D.C. ruling, the court agreed in a two-to-one decision that the text of the Obamacare law was to be interpreted as it stood. This means that subsidies in the federal exchanges are supposed to stop, but reports have since surfaced that the president is intending to ignore this ruling until there is further deliberation.
“If you like your health care plan, you can keep your health care plan.”
Every American remembers hearing this empty promise. I bet you can even hear the inflection of the president’s voice as you read that line.
Or how about our president telling us how much money his new health care law would save us? If not, let’s refresh our memory:
I couldn’t even watch the whole thing. After a while, you just get sick of the lies.
So here’s a new question for President Obama: “Where’s my $2,500?”
In a highly anticipated decision, this morning the D.C. Circuit Court ruled on the Halbig v. Burwell case argued back in March. The decision, which had court-watchers on edge for a better part of a month, was closely watched because of its potential impact on Obamacare subsidies and the power the IRS had to distribute those subsidies. In short, the text of Obamacare only provides for subsidies to be used in state exchanges. The lawsuit argued that this made federal exchanges, established when thirty-six states refused to set up their own exchanges, ineligible for subsidies.
The ruling was a 2-1 decision against the government, with a concurring decision and a dissent. It mostly examined the idea of textualism versus intent by members of Congress. In the concurring opinion, Judge Randolph gets to the heart of the issue by quoting former Supreme Court justice Louis Brandeis in another case:
On a 2-1 vote, a panel of the DC Circuit Court of Appeals has ruled that the Obamacare law as written does not permit subsidies for those who purchase health insurance through the federal exchange rather than through state-created exchanges.
It is clearly the right decision based on the text of the law, but it was nevertheless far from a foregone conclusion that the court would rule this way.
It is premature for major celebrations by opponents of Obamacare...which I'll get into in an article later today or tomorrow.
In 1839, the future saint Jeanne Jugan gathered a group of women and girls, and began administering care to the poor of Rennes, France. One-hundred and seventy-five years later, Jugan’s group, Little Sisters of the Poor, has apparently become something far more sinister. That’s according to the reliably irrelevant National Organization for Women, which recently included the sisterhood on its “Dirty 100” list of groups that have been “using religion to justify discrimination, deny women’s equality.”
Reeling over the loss of the recent Hobby Lobby ruling by the Supreme Court, birth control and abortifacient advocates across the country are clamoring for legislation to overturn the decision. This morning, many on the left rejoiced when Democrats in the Senate announced their intention to adopt a measure to force companies to forgo religious objections and pay for abortifacients.
According to Talking Points Memo:
Senate Democrats are poised to introduce legislation as early as Tuesday to reverse the Supreme Court's Hobby Lobby ruling which exempted for-profit corporations with religious owners from the Obamacare mandate to cover emergency contraceptives in their insurance plans.
The legislation, introduced by Democratic Senators Patty Murray of Washington and Mark Udall of Colorado:
A high-profile, yet little-covered case is making its way through the D.C. Circuit Court. The ruling in that case could topple the bureaucratic behemoth known as Obamacare. The case rests on the legal and textual interpretation of a section of the law.
It all started in 2011, when Jonathan H. Adler, a conservative law professor at Case Western Reserve University in Ohio, shot an email to his friend Michael Cannon, a health policy expert at the libertarian Cato Institute in Washington, D.C. Adler thought he had spotted an error in Obamacare that could unravel a significant portion of the law.
Over at Cato, the argument is clarified: