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The Courts May Yet Destroy Obamacare

by Keith Koffler on December 3, 2013, 11:47 am

Obamacare is still being challenged in the courts. And the problem presented by one of the challenges is very, very serious.

The argument, which is being heard today by a federal judge in the District of Columbia, is being being brought as part of several cases launched by states like Indiana and Oklahoma as well as business owners and individuals.

You see, Healthcare.gov may have a bigger problem than page load timeouts. According to the text of the Obamacare law, the federal exchange program the website offers to the public is not supposed to hand out subsidies. And yet, without subsidies, Obamacare is not workable.

The Affordable Care Act provides that subsidies will be available to those who “were enrolled in through an exchange established by the State.” But 36 states refused to set up exchanges. And so their citizens must participate in the federal exchanges. And, according to the letter of the law, they can’t have subsidies and have to pay the sticker price for insurance. Which is unaffordable.

Opponents of the suit don’t deny the plain language of the law. They claim that if you look at the law in its entirety, including the provision of a federal exchange, it’s clear that Congress was creating a federal program intended for everyone to get subsidies.

But the climate is bad for such arguments.

The case may well go to the Supreme Court, where there are five justices who tend to take the specific wording of legal documents – like, say, the Constitution – seriously. One of them, John Roberts, will be under extraordinary pressure to reverse the damage he did by failing to agree that the individual mandate was unconstitutional.

What’s more, the suits target the federal nature of the law, which has been shown unworkable so far, particularly with respect to Healthcare.gov. There’s an argument to be made that the law as written would avoid just such a debacle – the state exchanges work much better – and that it is both a logical and legal matter that a federal exchange is ruled out.

And there has been growing outcry, no doubt heard by the Justices, that the administration is implementing the law without regard to its provisions – delaying statutory start dates and so forth – and in general acting without regard to the will of Congress on this and other matters.

Hold onto your seats. The judiciary might just strike down Obamacare.

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{ 37 comments… read them below or add one }

Star December 3, 2013 at 11:51 am

Contains the seeds of its own destruction.

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Steve D December 4, 2013 at 10:11 pm

No it didn’t and no you don’t.

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Julie Brueckheimer December 3, 2013 at 12:02 pm

That last bit about Obama changing his ‘established law’ to suit his needs might go to the courts as a separate issue of constitutional powers.

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srdem65 December 3, 2013 at 12:15 pm

Because the Robert’s court deemed that it was legal and constitutional to impose a “tax” on an individual for NOT buying something and to force free Americans to “buy” a private commercial product, then there’s little hope they will find a simple wording in the law as enough to kibosh the whole thing.

The Supremes twisted themselves and the law into pretzels trying to give the Dems what they thought they wanted. It’s not clear if what the Dems got in Obamacare is what they assumed it would be, but that’s too bad for them. They should have read the bill first, then voted.

The only way for this monstrosity and travesty to end is for the Dems to face reality (and their own futures) by putting a stop to it before more damage is done to the people they represent.

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Julie Brueckheimer December 3, 2013 at 12:21 pm

I hope the Republicans are working on an alternative because I don’t see healthcare going back to what it was before Obamacare was passed. Obama has given business and corporations an out from offering insurance as a benefit to their employees. They’re not going to reinstate those cancelled policies or invite the laid off back to work.

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srdem65 December 3, 2013 at 12:54 pm

You have identified the hook, the hidden backup plan in this mess; the health care benefits paid for by the employers is tax-free earned income for the workers. Just an the self-employed pay for their health insurance with net income after they pay income tax, so will the millions of workers after their employers dump them from company sponsored (paid) health insurance.

Disposable income will plummet as employees try to keep up their health insurance payments, and insurance companies will be flush with cash. Employers will be pressured into increasing worker’s wages, and the tax coffers will be swollen with new revenue.
It’s a lose/lose, net sum outcome. The only winners wlll be the insurance industry and the federal government.
Sweet, huh?

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Star December 3, 2013 at 2:32 pm

I heard someone say growth is only 1.7% as it is. Fine kettle of fish. Where did that expression come from anyhow? It never means fine–built in sarcasm.

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Radegunda December 3, 2013 at 4:28 pm

Actually, the self-employed can deduct their insurance cost from their income before they pay taxes. At least, they could. up to now.

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cali December 4, 2013 at 6:36 pm

I always thought that laws/bills have to originate in the house of representatives and, this Obama care did not. What gives?

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cincycinco December 3, 2013 at 1:06 pm

“…Dems to face reality…” – srdem65

Is there such a thing as negative probability? You’d have to go there to calculate the chances of THAT happening…

Also, Obama’s WAY too smart to let stuff like reality get in the way. He’s the “man of system” described ~200 years ago by Adam Smith…

“Adam Smith : The man of system, on the contrary, is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it. He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it. If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably, and the society must be at all times in the highest degree of disorder.” – Adam Smith, “Moral Sentiments”

http://www.iwise.com/l9Sl6

You’ll never get a guy like THAT to face reality. He’s made his OWN, and REFUSES to live anywhere else…

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ImNoDhimmi December 3, 2013 at 5:22 pm

Adam Smith possessed either precognition or a time machine set to 2008.

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Porterhouse December 3, 2013 at 12:18 pm

One could argue that they did read the bill and voted under the assumption that the law meant what it said…no State exchange, no subsidy.

We already now ask, “What is the point of passing laws?” when the administration isn’t following them. Now we can ask, “What is the point of voting for a law if it doesn’t mean what it says.”

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Star December 3, 2013 at 12:35 pm

It says it flat out–will that be enough…or will some judge or justice think aw, they probably didn’t mean it… This whole system is so shaky now it’s frightening.

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Lizzy December 3, 2013 at 12:29 pm

We can only hope that the Courts still actually do believe in the job
they are to do on behalf of America and the laws it was founded on so
long ago. They weren’t written in pencil or invisible ink in the case of
our imperial president. Hope and pray we have enough good men and women in our court system that care about the law as written not the
whim of a dangerous little man Obama.

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Julie Brueckheimer December 3, 2013 at 3:32 pm

Amen, Lizzy.

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lizzytalorburton December 4, 2013 at 12:21 am

So true Lizzy, but I am losing hope — there is no reality in Washington anymore, nobody cares enough about our country to stop this little man. They are either too stupid or too ignorant or too scared. We will all get what we deserved for giving an inexperienced idiot a chance in the White House. Our President should not be voted in because of his race and because he is a novelty. That goes for Hillary Clinton too, another novelty who will cause us more hurt, anger and damage to what once was our beautiful country.

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Guillermo Grande December 3, 2013 at 12:42 pm

Good article yesterday in the WSJ by Scott Pruitt, the attorney general of Oklahoma.

ObamaCare’s Next Legal Challenge
The law says subsidies can only go through state-run exchanges.

http://m.us.wsj.com/articles/SB10001424052702304448204579186322449012040?mobile=y

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JoeThePimpernel December 3, 2013 at 12:47 pm

Even if the courts find that the federal exchange can’t grant subsidies Ubama will do it anyway, and who is going to stop him?

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srdem65 December 3, 2013 at 12:56 pm

Point goes to @Joe.

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creeper December 3, 2013 at 1:11 pm

Maybe that’s what he’ll say in today’s speech…The Law According to Obama.

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Geoff Caldwell December 3, 2013 at 12:58 pm

Unless John Roberts has found something on Obama to counter blackmail him on the information they held over him to twist himself into a pretzel reversing himself in the final days leading up to his pathetic reasoning on the mandate there isn’t a snowball’s chance in Obama’s eternal resting place that he reverses himself now.

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gracepmc December 3, 2013 at 2:23 pm

I replied but it didn’t go through. Short version — Roberts has been bought and will stay bought.

OT. Boehnner hires Rebecca’s Tallent — ex McCain and ex bi partisan policy vented director of immigration. Might just as well be a Dem — not a good sign. Left message at JB — they may not care but they need to know someone is watching and they will not be allowed to go gently into that good night. When they sellout the party and the country it cannot go unnoticed.

Same goes for Roberts.

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Julie Brueckheimer December 3, 2013 at 3:38 pm

I found your reply to me the other day funny as all get out but spot on. There was a discussion of Dante’s Inferno and I asked who would be embedded in the ice at the core of hell. I was expecting Obama but you said John Roberts.

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Girly1 December 3, 2013 at 1:02 pm

In-depth report from Cato Institute (Cannon and Adler): The ‘omission’ was neither a ‘glitch’ or unintentional. Hope Obama et al end up in orange jumpsuits!

Taxation Without Representation:
The Illegal IRS Rule to Expand
Tax Credits under the PPACA*

http://object.cato.org/sites/cato.org/files/articles/cannon-adler-health-matrix-23.pdf

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doriangrey1 December 3, 2013 at 1:07 pm

Not to be to much of a Debbie Downer here, but Obama has pretty much proven already that he and the democrats do not care what the written laws say or the courts decide.

When ideology trumps everything else, including intelligence and good advice.

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creeper December 3, 2013 at 1:08 pm

I won’t hold my breath waiting for John Roberts to save us. Whatever they had on him they’ve still got.

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Mandy Manners December 3, 2013 at 1:18 pm

I might hold onto my seat, but I won’t hold my breath.

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Lee December 3, 2013 at 2:24 pm

The bottom line. No one read this…….
They all work for me, us! This nonsense of bills be over 2,000 pages as got to stop. I appreciate everyone’s comment before me. As far as a fall back plan for the republicans, I think it would be a mistake to throw a bunch of stuff in a bucket. I think we should go back to square 1. Both parties get the most intelligent people to work out something to improve the system we had.
No matter what comes about the notion of giving all your personal information to any one before agreeing to it or buying is
absurd.

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Julie Brueckheimer December 3, 2013 at 3:35 pm

I so agree about ‘comprehensive’ bills. We have the Patriot Act and Obamacare which no one read before voting. No comprehensive bill on immigration.

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Darkangel December 3, 2013 at 2:24 pm

Somehow, I doubt Chief Justice Roberts wants to go down in history as the jurist that gave a second judicial blessing to the demise of American medicine. He may have wanted to stay out of the election, but if he upholds it this time, he’ll be remembered as the most evil judge in American history, and don’t think he doesn’t know that.

Obamacare-as-theory may have just held water in 2012, but with millions now losing their insurance in practice, I suspect Chief Justice Roberts might want to correct his earlier mistake. If he goes along this time, it’s likely to cause a groundswell on Main Street to give Congress or the States additional checks on the Supreme Court, and I doubt he wants to be remembered for that, either.

I’m guardedly optimistic here.

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rulierose December 3, 2013 at 5:57 pm

can we dare to hope? will Chief Justice Roberts undo his unforced error and dust off that original opinion he wrote–you know, the one that found Obamacare UNconstitutional?

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MarjoJimbo December 3, 2013 at 8:11 pm

Wishful thinking, Keith, but I hope your analysis is correct.

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lizzytalorburton December 4, 2013 at 12:12 am

I hope somebody does something about this terrible, confusing, one size fits all law and this murdering babies law, and hope that something is done to the Administration to FORCE THEM to tell everyone the truth and how much the damn insurance costs?? NO ONE IS SIGNED UP BECAUSE NO ONE HAS PAID FOR AN INSURANCE POLICY– who are they kidding, no one has really signed up, because if you don’t pay you don’t have a policy? BECAUSE THE GOVERNMENT WON’T TELL ANYONE HOW MUCH THE CRAPPY INSURANCE COSTS DUE TO THE DEMOCRATS’ POLITICAL AMBITIONS.This whole Obomination law is just for politics, pure and simple and is so screwed up, how could anyone go online and put their personal stuff in this criminal website? It is so OBVIOUS that no one knows how much this thing will cost them and that they are being kept in the dark about the cost on purpose for Obomination elections nexst year. And yet all we do is talk and talk and complain and nobody stops these crooks in the White House from stealing our money for their stupid democrat ideas which have no basis in REALITY! I know I’m rambling but I can’t help it.

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Praise Obamacare December 5, 2013 at 3:11 pm

I think Obamacare is here to stay. There are no other alternatives at the moment. The GOP complain about it constantly, but have no real solutions. I think we should focus on improving Obamacare because it has already worked in Massachusetts for Romney.

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Sharon December 16, 2013 at 1:13 pm

If anyone can do it, let’s get it done. The Supreme Court needs to act before Obama gets to them and convinces them in one way or the other to do as he says. So far, he’s convinced a lot of people in one way or the other to follow, keep their mouths shut, and obey. Disgraceful, disgusting behavior from a leader who thrives on self-satisfaction, greed, and dishonesty with lies and false promises, while coverups and deals await exposure)

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