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Government & Politics

The Act That Wouldn't Die

Federal courts split on whether ObamaCare state subsidies are legal.

Jul. 23, 2014

In a remarkably common showing of the insanity surrounding the Orwellian-titled “Affordable Care Act” (which is anything but “affordable” – or “caring,” for that matter), two federal courts weighed in yesterday – naturally, against each other – on whether ObamaCare subsidies are legal. The cases put Democrats in the entertaining position of hoping the law of the land isn’t actually the law.

A three-judge panel for the U.S. Court of Appeals for the DC Circuit ruled subsidies are illegal if issued through a federal exchange, as opposed to a state exchange, per the letter of the statute, noting, “our job, when interpreting a statute, is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process.” Since 36 states opted not to set up an exchange, this is an acute problem. Immediately following this decision, however, a Fourth U.S. Circuit Court of Appeals panel ruled those subsidies legal for people who buy plans on Healthcare.gov – i.e., through the federal exchange.

The issue of subsidies is critical because they are the only way much of the American public can afford to comply with ObamaCare’s stringent requirements and onerous fees. If the subsidy provisions are gutted, the ACA’s house of cards collapses. Indeed, George Washington University’s distinguished constitutional scholar, Jonathan Turley, a self-acknowledged Obama supporter who has been very critical of Obama’s “dangerous and destabilizing” abuse of executive orders and regulations to bypass Congress, observed, “Just last week I testified before Congress that [this case] was a live torpedo in the water for ObamaCare, and that torpedo just hit.”

Naturally, the usual opponents of freedom – the “Executive Branch” and its vast network of administrative minions – promised to keep the gravy train alive by continuing to pay subsidies through the Department of Health and Human Services.

None of this confusion or subversion should be surprising. Let’s review: First, there was the under-cover-of-darkness, (literally) midnight-hour passage of ObamaCare. Then-House Speaker and leftist wingnut Nancy Pelosi (D-CA) inadvertently immortalized the implicit arm-twisting and skullduggery afoot with her now-infamous line, “We have to pass the bill so that you can find out, uh, what is in it.” Next, there were the usual suspects and their vacuous endorsements. For example, Sen. Chris Murphy (D-CT) recently claimed that ObamaCare “is being implemented incredibly well.” We’d like to ask the good senator on which planet ObamaCare is working at all – let alone “incredibly well.” Finally – sadly but thankfully – there were the rueful, after-the-fact, revelations-of-the-obvious, such as this from Sen. Max Baucus (D-MT): “I just see a huge train wreck coming down.” He was right.

Apparently, everyone but our “benevolent caretakers” understand the real implications of the ACA’s passage: A permanent gravy train for the non-working class on the backs of those with a job, and – hopefully, for the Dems – a permanently dependent source of readily available votes. Especially heavily hit are today’s youth, who, though healthy, must now fund those who, a) don’t really work and b) aren’t very healthy. True, this is a generalization, but on the whole it illustrates the latest transfer-of-wealth tactic from those who are more than happy to reach into Peter’s pocket to pay Paul – never mind that Paul deserves none of Peter’s hard-earned money or freedom.

The good news for the Obama administration is that Rule of Law for them is simply a three-word term that applies only to “everyone else.” As evidence, see Senate Majority Leader Harry Reid’s (D-NV) use of the so-called “nuclear option” to ensure the DC Circuit Court is fully packed with willing and able lackeys who will serve “the greater good” by ignoring all those silly rules of law and giving Obama anything he wants. We should expect the next move to be to ask for an en banc ruling (i.e., a ruling from the entire [packed] DC court) to overturn the three-judge ruling. That will delay the outcome for several months at least. From there, an appeal will elevate it to the Supreme Court, which, if it accepts the case, would not reach a decision until next spring.

However, Chief Justice John Roberts is a wildcard given his judicial gymnastics in rewriting the law in order to uphold it. As National Review’s Wesley Smith notes, “Courts are generally supposed to apply laws as written, not rewrite them – as Justice John Roberts infamously and incoherently did so he could find ObamaCare constitutional. (It’s not a tax, it’s unconstitutional under the Commerce Clause, it’s a tax so we can find it constitutional.)” In upholding the law, Roberts wrote, “It is not our job to protect the people from the consequences of their political choices.” We hope he gets to use those words again, only this time to strike down the subsidies that prop up the law. But we’re not holding our breath.

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