Liberals would rather pretend that conservative arguments don’t exist—at least it feels that way, sometimes. But on the eve of King v. Burwell, that is exactly what’s happening. Recognizing the significance that constitutional federalism could come to bear in interpreting the Affordable Care Act’s provisions for health insurance exchanges, some of the Administration’s defenders have begun to argue that their opponents have not even attempted to make a federalism argument in support of their challenge.
By Heather R. Higgins and Hadley Heath Manning
The Supreme Court is set to hear another case, King v. Burwell, with important implications for Obamacare. The question is whether the IRS overstepped its authority in treating the federal exchanges like state exchanges and causing subsidies to flow — and the companion penalties and mandates to apply — to consumers, governments, and organizations in federal-exchange states, despite the clear text of the law.
In advance of the March 4th hearing, the Administration and allied organizations are painting a picture of calamity – they say six, then seven, now eight million people will lose their subsidies and thus risk losing their insurance coverage if the plaintiffs win.
The clear hope is to frighten the Justices away from reading the plain language of the law, undoing the IRS administrative fiat, and restoring the law as explicitly written and intended.
Congress is busily making plans for legislative action should the latest challenge to Obamacare prevail in the Supreme Court.
On Wednesday, the justices will hear arguments in King v. Burwell to decide whether the IRS had the authority to write a rule authorizing subsidies to go to millions of people in the 37 states with federal exchanges.
The plaintiffs say the language of the law is clear: Subsidies are allowed in “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.” It doesn’t just say this once, but nine times in various linguistic forms.
That is the point that MIT economist Jonathan Gruber made when he famously said: “If you’re a state, and you don’t set up an exchange, that means your citizens don’t get their tax credits.”
The day of reckoning for President Obama’s lawless rollout of Obamacare finally will arrive this week when the Supreme Court hears oral arguments in King v. Burwell. Americans who are interested in the rule of law should hope that when the SCOTUS hands down its decision–most likely on the very last day of the term this June–it will rule to enforce the law that was actually written, not the law the IRS wishes had been written. But those like me who are interested in good health policy are looking forward to an important side-benefit of such a principled decision. It finally may give us a crude market test for a poorly conceived and badly marketed product that so far has survived only because it has a federally enforced monopoly behind it.
The Obama Administration’s abuse of executive power—dispensing with its duty to faithfully execute statutes to become a law maker unto itself—has become the most consequential dispute across the three branches of government. The Supreme Court rejoins this debate on Wednesday with oral arguments in the challenge to the White House’s illegal Affordable Care Act subsidies.
By our count at the Galen Institute, more than 49 significant changes already have been made to the Patient Protection and Affordable Care Act: at least 30 that President Obama has made unilaterally, 17 that Congress has passed and the president has signed, and 2 by the Supreme Court.
As we approach oral argument this week at the Supreme Court in the King v. Burwell case, critics of the latest legal challenge to an Affordable Care Act provision are predicting a disaster of biblical proportions if the Court overturns an IRS rule and declares as illegal the current insurance subsidies for coverage in health exchanges established by the federal government.
This endless loop of major media reporting seems to be taking its cues from the original Ghostbusters movie script. “Fire and brimstone coming down from the skies! Rivers and seas boiling! Forty years of darkness! The dead rising from the grave! Human sacrifice! Dogs and cats, living together! Mass hysteria!” But only the “mass hysteria” part may be accurate for some of those news and commentary outlets.