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Posted by on Jul 23, 2014 in Health, Politics | 8 comments

Activist Conservative Judges Attempt To Destroy Obamacare, Causing Potential Problems For Republicans

We had two different federal appeals court panels give conflicting rulings on Tuesday regarding the legality of subsidies in the Affordable Care Act. This came about due to some ambiguities in the writing of the law–primarily a proof reading error at one point which suggests that only insurance purchased in state exchanges can allow subsidies. The bulk of the law makes it clear that people purchasing coverage can qualify for subsidies regardless of whether purchased on a federal or state exchange. [icopyright one button toolbar]

It is impossible to predict with certainty, but legal experts are generally predicting that the Supreme Court would follow precedent and go with the overall intent of the law as opposed to allowing the conservative activist judges from the United States Court of Appeals for the District of Columbia to overturn the law.

In the event that the Supreme Court should support this idea we could then have a rather chaotic situation. About 4.5 million people would lose their subsidies, making many people very angry at any Republican politicians who refused to work towards a fix.  There would be two potential solutions. One would be for each state to build their own exchange. Presumably they would now have the benefit of the experience of those working on the federal exchange, so this might not be as difficult as it sounds. However, a far simpler solution would be for Congress to pass legislation to clear up the ambiguous wording in the Affordable Care Act which led to this situation.

We could have rather interesting political battles if Republicans would continue to call for repeal and refuse to act to make the fix. This would anger many voters who in effect are receiving a significant tax increase by losing their subsidies, and ultimately might lose their medical care. Would Republicans stick to demanding repeal or be forced to give into demand to allow people to receive the subsidies and continue their insurance coverage? If I was a Republican politician, I think I might hope that the Supreme Court rules in favor of the current subsidies and avoids this political problem.

Cross posted from Liberal Values

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  • dduck

    This could lead to the demons being let out of the golden box.
    If the SC rules strictly on the wording which appears to say subsidies for states ONLY, and doesn’t give a hall pass as they did with the mandate ruling, then the whole law might bounce back to congress and that would be a disaster.

    As I I have said before, I think this was a poorly crafted law, but it is here and we should just fix it up and try to improve it over the years.

  • “If the SC rules strictly on the wording which appears to say subsidies for states ONLY”

    Only in one portion. The rest of the law is unambiguous that subsidies apply to everyone, regardless of whether they purchased from a state or federal exchange.

    This was one proof reading error, not sign of a poorly crafted law.

  • dduck

    I stand by my opinion.


    But the first thing that will happen is an en banc appeal to the full D.C. court, which will likely overturn the ruling of the panel. Then if it goes to the SC and they rule the way dduck thinks they could the question is how many previous court rulings would be invalidated by it? Could they actually craft a decision so narrow that it would only affect this case? If they do the reputation of the court will take a major hit. It will just be further proof of the extent of the politicization of this court. Of course Scalia, Alito, and Thomas don’t care about that but Roberts does.

  • No matter how it ends in court, as dduck said, this bill was poorly crafted and begged for political warfare. Obama, Reid and Pelosi are stained for that; as are all of those who engaged them in the warfare. And those who opposed similar efforts going back decades.

    There is such a dearth of leadership in Washington.

  • dduck

    IMHO, at this point, as with the mandate decision, the SC with Roberts leading, will say that it was the overall intent of congress, blah, blah.
    Of course, some say the ONLY subsidies for state plans was an attempt to get all the states to create their own exchanges.
    Could be, as there certainly were a lot of manipulations and “deals” to try and make Frankenstein look like George Clooney and get the sixty votes.

  • “the SC with Roberts leading, will say that it was the overall intent of congress, blah, blah.”

    It is more than going by the overall intent of Congress. It is going by the law as written when the entire law is considered. There is plenty of precedent for taking the intent of a law as opposed to sticking with a minor error in writing which was not picked up on proof reading. I suspect that if it makes it to the Supreme Court most of the conservative justices will vote against the ACA on ideological grounds but Roberts won’t go along with that and once again will be the deciding vote to save the ACA.

    “Of course, some say the ONLY subsidies for state plans was an attempt to get all the states to create their own exchanges.”

    Some may say that, but the law as written doesn’t support that.

  • Need to keep in mind that errors in wording in legislation is not that rare. Having this occur somewhere in the text of the ACA is not at all unusual , and is not a sign of poorly crafted legislation or of any lack of leadership. (There might be other grounds to question Democratic leadership, but this does not provide evidence of it).

    A ramification of this is that if the Supreme Court were to throw out the subsidies based upon this, they would be changing long standing judicial precedent to go with the overall intent of the law, and many other laws could then be similarly challenged. The most far right wing justices might have no problem with this, but I don’t think Roberts would go along.

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