Do you believe in the Rule of Law? I do. Do you believe that agency can just “make things up?” I don’t.[read_more]
Today, Wednesday March 4, 2015, the Supreme Court will hear oral arguments in the case King v. Burwell, Secretary of HHS (14-114).
You may have hear of the case. In the un-Affordable Care Act, or ObamaCare, there is a provision for subsidies to low income Americans who have signed up for insurance through their State Exchange. This subsidy is paid to offset expenses in order to secure the insurance in the first place. As we know, ObamaCare requires all to be insured under threat of IRS penalties and potential jail.
ObamaCare does not provide for subsidies if the individual is in a Federal Exchange.
Brief History: The federal government has a long history (about 100 years now)where it manipulates States by dangling money for action. One most are familiar with is the ‘national speed limit’ that was imposed on the States to lower their speed limit to 55 mph. All 50 states did do that or they would have lost federal highway funds. (This linkage no longer exists, but was imposed in 1974 and lifted in 1995.) The largest dangling for money is Medicare.
But this time with ObamaCare, States did not buy in. 36 states did not create Exchanges, thankfully including Virginia. Those citizens in these states that sign up for ObamaCare go through the Federal Exchange. The HHS Secretary Sylvia Burwell has administratively decided beyond the authorization of Congress to pay subsidies through these Federal Exchanges. This is patently outside of the law, hence the law suit.
This is simply a case regarding “Statutory Interpretation” of the text. Does ObamaCare allow Federal Exchanges to subsidize or not.
Section 1311 of ObamaCare sets up the parameters for States to create Exchanges.
Section 1401 does authorize tax credits for the purchase of health insurance in those Exchanges established by States.
The ObamaCare law repeatedly emphasizes that in order to receive a subsidy, those individual have to meet three requirements:
- Be on an Exchange
- Exchange be established by States
- Those Exchanges have to satisfy the requirements of Section 1311.
Because ObamaCare uses the law of large numbers to make insurance work, those who are signed up need to offset those who are sick. That is how insurance generally works. In order to make the whole thing work, the federal government recognizes that it needs those in the 36 states that did not create an Exchange to remain insured, so it subsidizes their insurance. This is outside of the law.
For example, if ObamaCare started to subsidize the purchase of cars for the lower class to purchase, this would be outside of the law. Same with subsidies for food, clothing, and other items that might be needed — no matter how noble it might be.
Conclusion: The plain language in ObamaCare does not allow for Federal Exchanges to subsidize anything. Yet it is just doing so.
HHS only has the authority to do anything that is delegated to it by bills passed by Congress and signed by the president. HHS is drawing upon the federal treasury through the IRS and is sending this money to insurance companies illegally. This is a problem. This is a violation of the Rule of Law.
Opponents will argue that if this violation is upheld and Federal Exchanges are prohibited from subsidizing payments then ObamaCare will likely fall. They argue this will create a cascading destructive effect to ObamaCare and that should not be permitted by the Supreme Court.
Well, a quick review of other decisions that have created cascading destructive effects would be, hum, Roe v Wade and 57 million abortions later. Overturn of Defense of Marriage Act allowing gay “marriage”, and, well, ObamaCare in the first place, changing the word ‘penalty’ to ‘tax’. The almost over turn of our 2nd Amendment rights with the 5-4 Heller v. DC. And there are others, many others.
If we are a nation of laws, then the language of the text needs to be honored. If Congress wants to take up the matter of Federal Exchange subsidies, then it most certainly can. But this case needs to be upheld and Federal subsidies need to immediately stop.