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.