One judge called the Obamacare rollout an “unmitigated disaster” and said the administration is stretching to try to cover up for how poorly the law was written.
“I know there’s an absurdity principle, but is there a stupidity principle?” said Judge A. Raymond Randolph. “If the law is just stupid, I don’t think it’s up to the court to save it.”
At stake in the case is whether the government can pay subsidies to help Americans buy insurance regardless of whether they are in states that set up their own health care markets, known as exchanges, or whether they live in the two-thirds of states where the federal government stepped in to set up an exchange.
If the court rules that residents are able to get tax credits only if they are part of state-run exchanges, many of the Americans who live in the 34 states where the federal government runs the exchange will be less likely to sign up. If they don’t sign up and choose to pay the tax penalty under the individual mandate, it could skew the economics underpinning the entire law.................."
Judge Harry Edwards:
explained that he had gone through the legislative history
and hadn’t found evidence that Congress intended for subsidies
to be limited to states that created their own exchanges.
“Limiting the subsidies as an incentive seems preposterous.”
Michael Carvin:
Ben Nelson, the former senator from Nebraska,
was withholding support for Obamacare,
because he wanted exchanges to be state-based.
The Senate voted to make exchanges state-based,
with the powerful inducement of generous subsidies.
Judge Raymond Randolph:
“the phrase “established by the state” appears no less
than seven times in the relevant section.
It’s not an isolated reference,”
“Congress assumed more states would set up their own exchanges,
as evidenced by the relatively small amount of money allocated
to the federal government to set up exchanges.”
Judge Thomas Griffith:
pointed out that the key part of the phrase “established by the state”
seemed to be who was establishing the exchange.
“It wasn’t established by a state” if HHS set it up.
He also asked whether, if Congress didn’t legislate something clearly,
it was really the court’s job to fix the statute.