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“Preposterous”: The Lethal Legal Threat To Obamacare That Could Land This Week And End It All

With all the headline grabbing going on over the SCOTUS Hobby Lobby decision, many pundits have not been paying much attention to another case set for a decision from the influential D.C. Court of Appeals as soon as this week—a decision that could, realistically, finish off Obamacare once and for all.

In Halbig v. Burwell, a challenge has been lodged by opponents of the Affordable Care Act who argue that the language of the law restricts government provided subsidies to state operated exchanges only—meaning that the premium subsidies being offered to qualified purchasers in the 34 states where the federal government is operating the healthcare exchanges, are illegal under the law.

The plaintiffs in the case explain their position as follows:

“The premium-assistance tax credit provisions of the PPACA clearly, consistently, and unambiguously authorize tax credits only in states that establish a health insurance “exchange” that complies with federal law. Specifically, Section 36B authorizes tax credits for the purchase of qualifying health insurance plans only in exchanges “established by a state under Section 1311…The IRS rule, by contrast, purports to authorize tax credits in Exchanges that are neither “established by the State” nor “established . . . under Section 1311.” This it cannot do. Because the language of the PPACA speaks directly to the question at issue, the IRS has no authority to provide tax credits in federal exchanges, nor is the IRS due deference in its interpretation of the Act.”

While it is generally agreed that the Congressional leaders who wrote the PPACA intended the premiums to be available via all health insurance exchanges—whether operated by the state itself, or the federal government in the instance of states not setting up their own exchanges—the plaintiff argues that the statutory language is clear and must be interpreted and enforced per the clear statement of the law.

If you think that those attempting to undo Obamacare are making a far-fetched argument—and a ruling from the Court of Appeals holding that the premium supports were only meant for state run exchanges would, in all likelihood, irrevocably tank the law—you are not alone.

Federal District Court Judge Paul Friedman held that the plaintiff’s claims were “unpersuasive” and that, since the federally run exchanges are created and operated on behalf of the states that chose not to do so, the federally operated exchanges were intended by Congress to be treated as state operated exchanges.

However, there are more than a few highly qualified legal experts who are not so sure that Judge Friedman got this right and believe that the result could be very different in the Court of Appeals.

Jonathan Turley—the widely respected constitutional law expert, television analyst and professor of law at George Washington University Law School—notes:

“Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act. If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”

Put another way, the language pretty clearly says one thing even if the intent was something else.

So, should the D.C. Court of Appeals be willing to review the legislative history—and the Friend of the Court brief submitted and signed by the Congressional leaders responsible for drafting the law which purports to inform the Court of their actual intent—or give plain meaning to what the statute actually says?

As Sahil Kapur reports , two members of the three judge panel hearing the case appeared, in oral arguments, to have considerable sympathy for the anti-Obamacare point of view.

Points out Judge A. Raymond Randolph, appointed to his seat by President George H.W. Bush, “If the legislation is just stupid, I don’t see that it’s up to the court to save it. ” Meanwhile, Judge Thomas Griffith, a George W. Bush appointee,  was a bit more reserved in his take on the case but did not fail to point out that there was a special burden on the Obama Administration (defending the action) to prove that the statutory language does not mean what it appears, on its face, to mean.

Only Democratic appointee, Judge Harry T. Edwards, took the position that the plaintiff’s claims were “preposterous”.

Should we get a decision in favor of the challenger here, Obamacare bashers might wish to withhold their enthusiasm as the Obama Administration will surely exercise its right to appeal the three judge panel’s ruling to the full D.C. Court of Appeals via an en banc motion.

Given that the full D.C. Court of Appeals includes seven Democratic appointees and only four Republican appointees, a vote of the entire court could well result in a very different decision.


By: Rick Ungar, Op-Ed Contributor, Forbes, July 7, 2014

July 8, 2014 Posted by | Affordable Care Act, D. C. Court of Appeals, Obamacare | , , , , , | Leave a comment

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