Scalia And Company May Have Already Shown Their Hand On Obamacare Subsidies

TPM.com ^ | July 24, 2014 | Dylan Scott

[Resettozero]

Conservatives on the U.S. Supreme Court might have already tipped their hand on the latest substantial legal threat to Obamacare, according to one Yale law professor. And if they did, it would be good news for the Obama administration.

A federal appeals court in Washington, D.C., ruled Tuesday that Obamacare's language did not allow people shopping on HealthCare.gov to access tax credits if they purchase insurance through the federal website. If that decision were to become law, affecting the 36 states served by the federal exchange, it would strip subsidies from nearly 5 million people and send their premiums skyrocketing. Without some sort of administrative rescue from the Obama administration, it would significantly gut the law.

Another federal appeals court in Virginia ruled the opposite way on the same day. Legal analysts have said it is at least possible that the case will end up in front of the Supreme Court, which largely upheld Obamacare in 2012. But the court's conservative streak has struck down some of the law's other provisions.

Abbe Gluck, a law professor at Yale University, highlighted some passages this week for a piece for Politico that showed how the court's conservative justices seemed to have already interpreted the issue in the 2012 ruling.

"It was Justice Scalia himself ... who interpreted the health reform statute precisely this way in the 2012 health reform case," Gluck wrote, "holistically, and assuming the statutory text makes subsidies available on state and federal exchanges alike."

Though they would have ruled Obamacare unconstitutional as a whole, the justices did not, according to Gluck's analysis, appear to even consider that the tax credits would not be available through HealthCare.gov. In fact, she argued, they seemed to assume exactly the opposite.

[Resettozero]

Doesn’t this prove that any law negotiated with obama is pointless, if he could simply rewrite his own law?


Already has, in my non-legal opinion. Your lawyer may vary.

[Resettozero]

It’s not surprising the Circuit Courts differed. They have to figure out what Congress was thinking, on a subject that Congress wasn’t thinking about.

Pass it to read it. Don't let them ever forget.

[GeronL]

They change the law on a whim “as the HHS Secretary may direct” all the time. They can change that too I suppose.

[MaxMax]

Obama needs Congress and the Senate to approve any changes to law.
But then we're talking about Obama here, and the crony brigade.

All this illegality will be struck down once the power shifts.
Damn, wrong again, we're talking about the new GOP here.

I'm not giving up!

[Political Junkie Too]

Revise that.

There are really only 2 branches of Government:

1. The Democrats

2. The Republicans

The former Constitutional branches have been subverted by the parties. Law and precedent no longer matter. The only thing that matters now is protecting the viability of the party in power. To that end, they corrupt the Constitutional branches to justify whatever the party in power needs done at that moment to protect its interests.

-PJ

[Resettozero]

There are really only 2 branches of Government:

1. The Democrats

2. The Republicans

By your standard, there is now only one.

[Political Junkie Too]

Yup.

-PJ

[Eagle Forgotten]

I just keep wondering, how did the Democrats ask the CBO to score the bill? Did they ask the CBO to score it with exclusively individual state exchanges issuing subsidies?

My other post took a guess that they asked for scoring on the assumption that all states would have exchanges. Thanks to the link provided by SoFloFreeper, I now learn I was wrong. According to the (pro-Obamacare) law professor writing at http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html?m=1 the CBO did not assume all state exchanges but did assume subsidies for everyone:

The government and amici have picked up the CBO argument in this case, including providing a letter to Congress from CBO director Douglas Elmendorf testifying to CBO’s initial and ongoing understanding that the subsidies would not be for the state exchanges alone. Opponents have offered nothing as a counterargument except for the fact that CBO’s initial calculation assumed, as did most others policymakers, that most of the exchanges would be state operated (because that is what the federalists now opposing the ACA wanted!). (my emphasis)

So that argument turns out to be one on the pro-subsidy side.

[Clump]

I’ve read that they deliberately put the language in because by doing so it caused the CBO to get the number under a trillion.
So yes it’s the law, and the IRS decision to give subsidies through federal exchanges amounts to a federal agency spending taxpayer money which is exclusively up to Congress.
They are trying a bait and switch.

[Chewbarkah]

Abbe Gluck’s opinion is just spin. Seems to me that Scalia’s point was conditional on a premise that can’t be met. Scalia will know that.

Justice Roberts ruled that Congress was empowered to create ACA through its power to “tax”.

But taxes and tax subsidies must be levied equally. For example, the federal government cannot allow Earned Income Credits for residents “Blue” states, and disallow Earned Income Credits for residents of “Red” states. If they could, they would.

But ACA allows or denies federal tax subsidies based on which state a person resides in. How can this be “equal treatment under the law”?

[Resettozero]

But ACA allows or denies federal tax subsidies based on which state a person resides in.

Hope it gets "interpreted" that way!