Will SCOTUS Protect Rule of Law in Obamacare?

May 26, 2015

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Supreme Court Justice Antonin Scalia is correct. What matters in the pending ruling on the Obamacare premium subsidies lawsuit is “not what Congress would have wanted, but what Congress enacted.”
The lawsuit, King v. Burwell, rests on four words in the 2010 Affordable Care Act: “established by the state.” Premium subsidies for Obamacare can only be issued by an exchange established by the state, not one established by the federal government (Healthcare.gov).
The New York Times, trying to dismiss the plain words of the law, recently went to great lengths to discuss what involved individuals thought was in the law and wanted in the law.
It is terribly convenient after the fact to make such claims – and terribly wrong to accept them. There’s no evidence that such claims are true and even if it were true, ruling according to anything but the law as written would set a terrible precedent for rule of law. Judicial decisions must not be based on the wishes, afterthoughts, claims and reconsiderations of those who now realize their attempt to bribe states didn’t work.
In fact, beyond the words in the law, there is plenty of evidence that allowing subsidies only through state-based exchanges was the plan (See amicus brief for Halbig v. Sebelius). As Jonathan Gruber, a chief architect of the law, who became known for his comments on the “stupidity” of the American people, told an audience in 2012:
“If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.
The bribe is clear. Because the U.S. Constitution prohibits federal commandeering of the States, President Obama needed to bribe states into setting up and funding a state-based exchange. Now, two years of premium subsidies and some $5 billion in federal exchange grants later, 34 states said no, 16 states plus Washington, D.C. struggled to set one up and 13 states plus D.C. are still standing. At least half are in financial trouble. Hawaii will shut down their exchange in September before the third open enrollment begins.
The use of state-based subsidies was a carefully conceived plan to dupe states into funding the implementation of a national exchange for the federal takeover of health care. Money for planning, set-up and operations of the federally controlled state exchanges was available for three years (until December 31, 2014) and then states would be on their own to fund the millions of dollars needed for operations. The promise of federal premium subsidies for their residents (average of $4,330 per subsidized enrollee in 2015) was tied to the states agreeing to maintain and operate a state arm of the national ACA exchange.
Obama illegalities continue through the IRS. Andy Grewal, a professor of law at the University of Iowa, has found other instances of the IRS expanding tax credit eligibility beyond what the law allows, further exposing employers to ACA penalties.
President Obama changes the law at will. Obamacare has been changed 50 times so far, with 31 of the changes by executive/administrative action.
It’s time for the rule of law to prevail. In this lawsuit, plaintiffs are just asking for the law to be followed as written. Supreme Court justices heard oral arguments on March 4 and voted a few days later. They already know who won.  Their ruling will be issued in June. For the sake of constitutional and limited government, they must make the right decision.
Praying for America's rule of law to prevail,
Twila Brase, RN, PHN
President and Co-founder
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