Kyle Wingfield

Political commentary and opinion from The Atlanta Journal-Constitution's conservative blogger

Opinion: Why the Supreme Court should throw out Obamacare's extralegal subsidies

Remember when I said the new GOP majority in Congress would have no practical option on Obamacare except to take it apart piece by piece ? Well, suddenly that seems so yesterday.

That's because of this news ( via National Journal ):

"The Supreme Court is taking up another Obamacare case -- one that could devastate the health care law's coverage expansion.

"The justices on Friday agreed to hear oral arguments in King v. Burwell, a lawsuit that challenges the insurance subsidies at the heart of the Affordable Care Act. The suit argues that the subsidies -- which roughly 80 percent of Obamacare enrollees received -- should only be available in about half the states. ...

"The lawsuit says that subsidies, which are available on a sliding scale based on household income, should be available only in states that set up their own insurance exchanges. The challengers point to a section in the law that refers to subsidies flowing through 'an exchange established by the state,' which, they argue, is a sign that Congress wanted to limit financial assistance to state-based exchanges.

"The IRS, though, has made subsidies available in all 50 states, including the 36 that chose to have the federal government run their marketplaces."

This is the same lawsuit liberals have derided as much ado about a typo. They just can't fathom that the drafters of Obamacare, back in those halcyon days of the Permanent Democratic Majority, might have simply miscalculated the law's future popularity, or lack thereof.

Would the result of a ruling against the Obama administration in this case be messy, unpredictable, even chaotic? Yes. Millions of people who bought insurance on the federal exchange would lose their subsidies. That would render many of them unable to afford their plans, whose higher premiums (due to coverage mandates and other elements of Obamacare) have been masked by those subsidies. Suddenly, Obamacare would seem a lot less affordable to a lot more people.

Would there be pressure on those 36 states to build their own exchanges? Probably.

Would there be pressure on Congress to change the law? Probably.

Would Congress have leverage to force President Obama to accept other changes to the law? Probably.

Would any of these questions be resolved quickly or easily?

Are you kidding me?

All that said, there is one very important reason the court should side with the law's challengers and eliminate the subsidies on the federal exchange: Laws should be executed the way they are written.

It would be a terrible precedent to allow Congress to write a law one way on a particular assumption (in this case, that it would help put political pressure on GOP-controlled states to go along with the law) and then claim the law meant something TOTALLY DIFFERENT when that assumption proved to be wrong.

Here's a thought experiment for you. A key argument made by the law's defenders is that a central purpose of Obamacare was to expand insurance coverage; ergo, its drafters wouldn't have intentionally limited that goal by creating the possibility some people wouldn't get coverage, regardless of how they actually wrote the law.

Sounds reasonable, right?

Well, what if the drafters of the 2009 "stimulus" bill tried to come back later and say, "We know the law specifies a certain amount of money, but the economy didn't recover as quickly as we assumed it would -- and that was the whole point of the exercise, after all -- so now we're going to spend twice that amount in the bill." Or imagine the same scenario with tax cuts: The cuts didn't boost the economy, so now we're going to cut more.

Seem a little less reasonable now?

The law should mean what it says. Lawmakers should write the law to say what they mean.

Maybe some liberals are up in arms about this challenge because they think it does say what they meant, or close enough. But some of them may also be upset because they know a reworking of Obamacare after an adverse court ruling probably wouldn't work out to their liking. Suddenly, the prospects for a large-scale overhaul of Obamacare, at the very least, seem much brighter.


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About the Author

Kyle Wingfield joined the AJC in 2009. He is a native of Dalton and a graduate of the University of Georgia.