Gabe's Favorite Obamacare Challenge Now Being Argued in the DC Circuit Court

If you don't remember, these cases concern the language of Obamacare, which states that federal tax credits and subsidies are available to those who purchase insurance in a health insurance exchange "established by a state under section 1311" of Obamacare.

But most states have not established state exchanges. In most states, Obamacare exists (to the extent it exists at all) as a federal insurance market. So tax credits and subsidies should not be available for such plans.

And further, section 1311 concerns the state exchanges. So the law does seem to restrict the subsidies/credits boondoggle only to state exchanges -- if we care about the law anymore, which Obama, like, doesn't.

A district court already ruled on this point in Obama's favor, back in January. Then, a Clinton appointee stated that the words of Obamacare were "clear" and "unambiguous" -- and clearly and unambiguously meant something other than they said. The lower court ruled that, get this, when Congress said subsidies would be available for polices bought on the state exchanges, they "clearly" and "unambiguously" meant "the state and/or federal exchanges."

Powerline links a digest of oral arguments on this point in the DC Circuit of Appeals (and there are, I think, three other identical challenges in other federal courts). In the DC circuit, at least, the judges (two Republican appointees and one Democratic one) seem skeptical of the government's argument that words are stupid things.

The Democratic judge (a Carter appointee) resorted to very weak arguments to justify letting the Obama Administration "interpret" the law to mean something other than the words actually say:

At one point, Judge Edwards claimed that because the statute was entitled the “Affordable” Care Act, the court should construe it so care would be affordable.

Apparently the government's arguments boiled down to these:

1) Come on, you can't strike this down, "everyone knows" what they meant, even if they didn't actually write it

2) No seriously "everyone knows" what they meant

Now, NRO's Bench Memos thinks (based on the judges' questioning) that we'll win here. However...

A 2-1 panel decision seems likely, with Judges Griffith and Randolph firmly in favor of applying the plain meaning, and with Judge Edwards against the plain meaning. If the appellants win and the court declares the regulation ultra vires, the government would likely petition for en banc rehearing to the newly-packed D.C. Circuit to delay or reverse the effect of the panel’s decision.

Yes, now that the DC Circuit is packed with Obama appointees, an en banc review would probably go against us.

And then on to the Supreme Court.

If you're interested in this case, the DC Circuit has posted audio of the oral arguments.

posted by Ace at 06:16 PM

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