Jonathan Turley: Get ready for an even bigger threat to Obamacare

Op-Ed Get ready for an even bigger threat to Obamacare
By Jonathan Turley
June 30, 2014

Now that the Supreme Court has issued its ruling in the Hobby Lobby case, the legal fight over the Affordable Care Act will shift a few blocks away to another Washington courtroom, where a far more fundamental challenge to Obamacare is about to be decided by the powerful U.S. Court of Appeals for the D.C. Circuit. Indeed, if Hobby Lobby will create complications for Obamacare, Halbig vs. Burwell could trigger a full cardiac arrest.

The Halbig case challenges the massive federal subsidies in the form of tax credits made available to people with financial need who enroll in the program. In crafting the act, Congress created incentives for states to set up health insurance exchanges and disincentives for them to opt out. The law, for example, made the subsidies available only to those enrolled in insurance plans through exchanges "established by the state."

But despite that carrot — and to the great surprise of the administration — some 34 states opted not to establish their own exchanges, leaving it to the federal government to do so. This left the White House with a dilemma: If only those enrollees in states that created exchanges were eligible for subsidies, a huge pool of people would be unable to afford coverage, and the entire program would be in danger of collapse.

Indeed, the Halbig plaintiffs — individuals and small businesses in six states that didn't establish state exchanges — objected that, without the tax credits, they could have claimed exemption from the individual mandate penalty because they would be deemed unable to pay for the coverage. If the courts agree with them, the costs would go up in all 34 states that didn't establish state exchanges, and the resulting exemptions could lead to a mass exodus from Obamacare.

The administration attempted to solve the problem by simply declaring that even residents of states without their own exchanges were eligible for subsidies, even though the law seemed to specifically say they were not. The administration argues that although the statute's language does limit subsidies to residents of places with exchanges "established by the state," that wording actually referred to any exchange, including those established by the federal government. In January, a district court judge upheld that interpretation, allowing the subsidies to continue.

But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.

In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that "this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address." In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that "an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms." And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments.

The D.C. Circuit Court is expected to rule any day now on the Halbig case, and supporters of the Affordable Care Act are growing nervous. In January, an Obamacare advocate described the Halbig case to a reporter for the Hill as "probably the most significant existential threat to the Affordable Care Act. All the other lawsuits that have been filed really don't go to the heart of the ACA, and this one would have." And in a fraught oral argument before the D.C. Circuit Court, the administration seemed to struggle to defend its interpretation.

If the ruling goes against the White House, it's hard to overstate the impact. Without subsidies, consumers in 34 states would face huge additional costs and, because of those costs, potential exemptions from the law. And voters — a substantial percentage of whom have never liked Obamacare — would be further alienated from the Democratic Party just in time for midterm elections.

Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.

The administration's loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.

Jonathan Turley is a professor of law at George Washington University and has testified in Congress on the executive orders under the Affordable Care Act.

http://www.latimes.com/opinion/op-ed/la-oe-0701-turley-obamacare-subsidy-halbig-20140701-story.html

 

And then there's the delayed employer mandate ... and from the following it sounds like as the clock is ticking employers are cutting back hours so they don't have to offer health insurance to part timers.

http://www.naturalnews.com/045805_Obamacare_employer_mandade_unemployment_rate.html

 

Wouldn't mind seeing MILLIONS of jobs being cut back to <30 hours. Perhaps THEN America would wake up and say, "Hey,... something's wrong with Odumbocare"... DUH!

 

And according to the article below they've been unable to resolve 2.6 million of the 2.9 million data inconsistency problems, or 89% that dealt with income or citizenship.

http://www.foxnews.com/politics/2014/07/01/report-obamacare-data-problems-affecting-millions/

 

My simple question is: should Republicans take control of the Senate this year and go on to win the presidential election in 2016, can this monstrosity called Obamacare still be repealed? Or are we forever stuck with this turkey?

And if it should eventually get repealed, is there any recourse for going after the lying Kenyan who foisted this piece of crap on the American people?

 

I suspect without the country electing true small govt conservatives... we are stuck with it.
The democrats and the establishment Rs do the work of the cronies and the cronies want it because its sucks all the excess income out of a larger percentage of americans.
If the establishment Rs were really against it they house could have defunded it.
Perhaps they were waiting to take over the Senate... but its hard to believe they work for the people considering they were trying to pass amnesty.

 

I too doubt it will be repealed.

But it absolutely must be changed big time. This crap of a single policy with different levels (Platinum, Gold, Silver and Bronze) is absolutely stupid. Allow people to CHOOSE the policy that meets their needs. And if healthy people want high deductible catastrophic policies then they should be able to buy them. Being FORCED to buy a product that may not meet your needs is something the government has no business being involved with.

 

With a Republican House, Senate, and Presidency, the Odumbocare atrocity COULD be repealed. A lot to hope for.... and not without consequences. There is lots of turmoil trying to get Odumbocare implemented... would take a lot to unwind it after all the players got geared-up to comply with it as is.

One way or another, health care is likely to be tumultuous for the next 10 years or more... thanks to the Odumbocrats wanting to grab power via the healthcare system.

Control of the citizens' health care is the CORNERSTONE of Cloward and Piven strategy to promote chaos to the extent the government collapses (flooding America's borders with illegals part of that, too)... making way for dictatorial control... as appears to be Odumbo's REAL objective.

:>(

ASSHOLES!!

 

Can you say "single payer"?

This whole ting was written to force a collapse of the insurance market place, making gov't the option of last resort.

"C'est la vie"

 

Assuming the elected Republicans (senate or presidency) don't have the balls to repeal Obamacare, funding for the risk corridors expire after 2016. This means insurance companies with mostly unhealthy patients will cease to receive subsidies for insuring these high-cost, high-maintenance individuals. They can raise premiums, but it is doubtful these sickly freeloaders will have the funds to pay for it.

So without government funds to subsidize these risk corridors, this piece of crap should collapse on its own. Unless of course our esteemed members of Congress and the Senate decide to continue funding it.

If a program ceases to accomplish what it was created for in the first place and will continue to drain the national treasury thereby threatening the very survival of the country, doesn't it make sense to discontinue it without regard to politics?

What exactly am I missing here?