The other case argued in Washington, DC on Tuesday could leave the ACA on life support in 36 states, thanks to Republicans in Congress.
Back in the days when we all naively assumed the ACA would be implemented on a state-by-state basis, including state-based exchanges, Republicans noticed a flaw in the language of the law. In another universe and time, such a flaw would be repaired with a small technical correction, but we're not living in that universe, so now conservatives have pushed the issue into the DC District Court of Appeals.
The case they heard today concerns a challenge to federal subsidies for insurance purchased on the federal exchange.
As readers may recall from our previous coverage of this challenge, it revolves around an argument put forward in 2011 by Jonathan Adler, a law professor at Case Western University, and Michael Cannon, a health care analyst at the libertarian Cato Institute and a committed Obamacare foe. They argue that the law is being carried out in contravention with its text: The section decreeing that people will get federal subsidies to help them pay for private insurance plans says that the subsidies are available for those buying plans on new exchanges established by the states—and makes no explicit provision for subsidies for those buying plans in states where governors and state legislators left the creation of the exchange up to the federal government. The law’s challengers—represented in the D.C. Circuit case, Halbig vs. Sebelius, by lawyer Michael Carvin—say the limiting of subsidies to state-based exchanges was no mere drafting oversight but rather a deliberate attempt by Democrats who wrote the legislation to induce states to set up their own exchanges rather than rely on the federal government to do so.
According to court observers today, the two conservative justices on the appellate court panel were openly derisive of the government's argument that the intent of the law trumps the language contained in it. Because again, this could be cured with a sane Congress and a simple technical correction. Obviously when it was drafted Congress was not counting on states opting out of everything, including something Republicans usually like: free markets.
If the DC Court of Appeals upholds the challenge, it will also head to the Supreme Court, where we'll have yet another round of arguments about issues that simply shouldn't be issues.
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This is where I once again ask, if they successfully gut the ACA in court, what will they do with the millions who finally have access to affordable health care?
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