EDITORIAL: Affordable Care Act’s own words should be its undoing


The Democrats who forced the Affordable Care Act on the American public are predictably outraged that Obamacare appears headed back before the U.S. Supreme Court for another make-or-break appeal on a pillar of the legislation. But for the Obama administration to prevail once more, the justices will have to follow the president’s lead in ignoring the letter of the law.

The latest legal challenge to Obamacare addresses the health insurance subsidies that have propped up the country’s tepid pursuit of coverage mandated by the law. The language of the Affordable Care Act clearly states that subsidies are available only through exchanges “established by a state.” Just 14 states (including Nevada) and the District of Columbia elected to create exchanges, leaving the residents of 36 states to purchase health insurance through the federal exchange.

By law, the federal exchange isn’t supposed to offer subsidies. But the Obama administration provided them anyway. And it’s the only reason the exchange attracted as many customers as it did — of the roughly 5.4 million people who applied for coverage through the federal exchange, about 87 percent received subsidies. Those subsidies averaged nearly $300 per month.

Because health insurance is so much more expensive under Obamacare, thanks to its costly mandates, and because exchange policies come with such high deductibles, very few people can afford to buy coverage without a subsidy. If the subsidy goes away in 36 states, fewer people will buy coverage, reducing insurers’ risk pool and requiring ever higher premiums on an ever shrinking number of policy holders. It would accelerate the law’s death spiral, which already has started because too many older, sick Americans have signed up for coverage and too few younger, healthier people are enrolled to make the costs pencil out.

A week ago today, a panel of the District of Columbia Circuit struck down the subsidies in Halbig v. Burwell, prompting the Justice Department to request a review by the full court. That same day, a panel of the Virginia-based 4th U.S. Circuit Court of Appeals upheld the subsidies in King v. Burwell.

Regardless of how the full D.C. Circuit rules in Halbig v. Burwell, the Supreme Court could accept an expedited appeal of King v. Burwell as soon as this fall. Not only would a decision in that case resolve litigation across the country — federal exchange subsidies are being challenged in other states as well — but it would answer the very important questions of whether billions of dollars are being spent illegally, and whether the language of Obamacare can mean whatever the president wants it to mean.

The administration, Senate Majority Leader Harry Reid and other Democrats claim the challenge is baseless; of course the law’s writers wanted subsidies for all. But the record says otherwise, with two of Obamacare’s architects — Sen. Max Baucus of Montana and economist Jonathan Gruber — saying subsidies would be unavailable through the federal exchange. It fit perfectly with the coercive nature of the law: states that created exchanges would be rewarded, those that didn’t would be punished.

For more than a year, the president has ignored provisions of Obamacare and unilaterally changed them based on political expediency. Here’s hoping the Supreme Court issues a stern reminder that sometimes laws mean exactly what they say — and that the justices can free the economy from the wet blanket of Obamacare once and for all.

 

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