Obamacare’s never-ending story
Obamacare appears headed for another rendezvous with the U.S. Supreme Court. The justices bent over backwards, well mainly Chief Justice John Roberts did, to save the Affordable Care Act two years ago. Will similar legal gymnastics be found to rescue President Barack Obama and Democrats from the clear text of the law this time?
At issue is explicit language saying that subsidies to purchase health insurance should go only to Americans who buy coverage through “an Exchange established by the State.” There’s reason to believe that the law was written this way to compel states to establish exchanges so their citizens would get subsidies.
But the law proved so unpopular that 34 states did not set up marketplaces. That forced the federal government to create exchanges. However, the law makes no provision for tax credits for Americans who buy insurance through Washington-established exchanges. That would make insurance unaffordable for millions of people, gutting the law.
Now that Obamacare has blown up in their faces, Democrats and the White Houses say the language was a “drafting error,” that Congress — actually Democrats since the law passed without a single Republican vote — intended for the subsidies to go to all Americans regardless of which exchange sold them insurance.
There are a couple of problems with this position.
For one, there’s no clear expression of such intent. The plain language of the law argues otherwise.
The other problem is that an assertion of the primacy of intent is exactly the opposite of the argument used to save Obamacare in the 2012. The issue then was a penalty the law imposed on individuals who would not buy insurance. It became obvious that such a penalty would not pass legal muster — the Commerce Clause of the Constitution cannot be used to compel Americans to buy a product.
As the legislation made its way through Congress, Democrats tried to dodge a “tax increase” label — a tax is a legitimate way to force the purchase of insurance — by saying that the penalty was legal and was not a tax. Obama, under persistent questioning on an ABC Sunday news show, insisted it was not a tax. But as the high court showdown neared, the White House flipped and argued for a tax interpretation. Chief Justice Roberts saved the law by saying that despite the intent of Congress, the penalty could be construed as a tax.
So the Obama-Democratic position is one of flip flop — intent didn’t matter two years ago, today it should be the guiding light. Oh, and never mind that there’s no clear expression of intent. As they say, whatever.
Two lower courts took opposite positions last week. An appeals court in Washington saw explicit language about subsidies only in state exchanges. An appellate court in Richmond ruled it “cannot discern” what “Congress intended,” but agreed with the White House position, albeit “only slightly,” and deferred to the interpretation of the law staked out by the administration. The Supreme Court likely will have to sort it out.
Under normal circumstances, the obvious course for cleaning up the law’s language would be for Congress simply to correct it. But this is impossible because of the original sin of Obamacare — it was passed by a hyperpartisan vote when Democrats controlled both houses. Any legislative fix would reopen debate about the whole law now that the Democrats’ majority in the House is gone and reduced in the Senate.
Nancy Pelosi, in 2010, infamously said, “We have to pass the bill so that you can find out what’s in it.” Founding out what’s in Obamacare appears to be a never-ending story.
Here’s an idea, how about we just leave The Patient Protection and Affordable Care Act (ObamaCARES) the fuck alone.
It passed both Houses of CongrASS. That dumbass House Of CongrASS known as the do nothing House Of Repukes, has attempted to repeal this law 56 times. The UnSupreme Court has upheld the nuts & bolts of President Barack Hussein Obama’s landmark law. So why don’t we ALL just leave it the fuck alone?
How bout we pass a comprehensive immigration law. We could even pass a jobs bill. There’s always gun reforms and gun control laws to work with and pass. Instead racist caucasians wish to cherry pick The Patient Protection and Affordable Care Act (ObamaCARES).
I’ll bet you $10,000 if George Dubbya Bush or William Jefferson Clinton had the balls to sponsor and sign The Patient Protection and Affordable Care Act, it would be accepted and loved by all.
Racism is a muthafucka.