In one of the Obamacare rewrites that many are unaware of, but which is tremendously significant, the Obama administration decided to change the clear language of the law and rule that HHS could provide subsidies to those who signed up on the federal exchange. On Tuesday a three-judge panel of the D.C. Circuit Court of Appeals will hear a case challenging the rule, according to the Wall Street Journal.
You see, the writers of Obamacare realized that for sure everyone’s going to love this thing, and so they decided it would be fine to say that insurance premium subsidies will be available only to people who enroll “through an Exchange established by the State.” The states of course wouldn’t want to deny their citizens the pleasure, and so they’d set up exchanges.
Except, 34 states didn’t.
The Wall Street Journal picks up the narrative:
In 2012, HHS and the Internal Revenue Service arrogated to themselves the power to rewrite the law and published a regulation simply decreeing that subsidies would be available through the federal exchanges too.
The IRS devoted only a single paragraph to its deviation from the statute, even though the “established by a State” language appears nine times in the law’s text. The rule claims that an exchange established on behalf of a state is a “federally established state-established exchange,” as if HHS is the 51st state.
Wow. A federally established state-established exchange. Only really good, dutiful Soviets could come up with such a phrase.
But not to worry. The WSJ suggests that even if Obama loses in court, he will ignore the judiciary, just as he did the legislature. Why discriminate?
Fear of legal defeat also explains why the Administration is suddenly claiming that the appeals court lacks the jurisdiction to invalidate its interpretation of ObamaCare. Last week the Justice Department submitted a so-called 28(J) letter, declaring that because Halbig is not a class action, any adverse ruling only applies to the named plaintiffs.
In other words, even if the court finds that the Administration is acting illegally, it cannot strike down the IRS-HHS rule and the executive branch will continue to ignore both Congress’s law and the law of the courts. There are few if any precedents for such a remarkable argument.
Precedents? Who needs precedents when you’re someone who is as unprecedented as the sublime Obama.