Published on TheHill.com on July 29, 2014
Conflicting court rulings on whether ObamaCare subsidies can go to those who enrolled through federal exchanges have cast the fate of the program into doubt. The 4th Circuit in Virginia insists that statute doesn’t say what it plainly does say — that only those enrolled via state exchanges can get subsidies. The D.C. Circuit’s three-judge panel disagreed.
So far, the Republican-appointed judges have read the law’s plain text and followed it, while those named by Democratic presidents have taken liberties with the words of the bill.
Were the D.C. Circuit Court ruling to go to an en banc hearing before the full 11-judge panel (7-4 Democrat), some say it will find for the government and protect ObamaCare.
But down on the farm, two identical lawsuits — one in Oklahoma and the other in Indiana — are making their way through the federal courts. While one cannot predict the outcome, the fact that both are assigned to district court judges appointed by Republican presidents cannot instill confidence in the administration’s legal team.
The Oklahoma suit, launched by state Attorney General E. Scott Pruitt before the Halbig v. Sebelius case was even filed, will be decided any day now by U.S. District Court judge Ronald A. White, appointed by then-President George W. Bush in 2003. Should he decide for the plaintiff, the case would go to the 10th Circuit Court of Appeals, which is pretty evenly divided on a party basis, with seven judges appointed by Democrats and six by Republicans. But the 10th Circuit has a reputation for being a much more of conservative court than either the D.C. Circuit or the 4th Circuit in Virginia.
The second case, State of Indiana et al. v. IRS et al, will also be heard by a judge named by a Republican president. In this case, he is Judge William T. Lawrence, appointed by Bush in 2008. And, should the court rule for the plaintiffs, the IRS would face the 7th Circuit Court, consisting of a 7-3 majority of judges named by Republican presidents.
If the 10th or 7th Circuits rule that nobody can get subsidies except through state exchanges, the conflict with the holding of the 4th Circuit and, depending on the outcome of an en banc hearing, the D.C. Circuit would likely force a Supreme Court hearing of the case.
But, more importantly, with each ruling in favor of reading the statute literally, the momentum for this reasonable point of view will grow, and the legitimacy of the challenge — once dismissed as kooky — will be more apparent.
One hopes that Justices Anthony Kennedy and John Roberts will see that their past insistence on taking congressional action at its word and not passing new legislation from the bench will apply in this case.
And what happens if the plaintiffs win?
By then, likely 10 million people would be getting subsidies and would lose them and, presumably, their health insurance. That will create irresistible pressure to act to replace the fallen ObamaCare statute.
If the Republicans take the Senate, they will be able to pass a replacement. They would need only 51 votes, just like the original ObamaCare bill. Obama would have to sign it or otherwise deny coverage to as many as 10 million Americans.
The Republican alternative, already passed by the House but ignored both by the Senate and the media, is a very good bill. It continues ObamaCare’s protection of those with pre-existing conditions and prevents the cancellation of their policies — or any increase in rates — if they get sick. But it eliminates the individual and the employer mandates, and allows anyone to buy — or not buy — any insurance they want.
Gone will be the minimum coverage requirements that have led to so many policy cancellations. The GOP bill provides for tax credits (refundable) to subsidize coverage, but the individual and the employer are free to buy any coverage they want. The seriously ill are to be covered by a special insurance pool or through Medicare.
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