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Sunday, May 20, 2018
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Editorial: Another crack in Obamacare

Supporters of the Affordable Care Act say a federal appeals court ruling, if upheld, could dismantle the law. That is instructive.

A panel of judges of the U.S. Court of Appeals for the District of Columbia on Tuesday simply found that the administration should follow the content of the legislation.

This wouldn’t be a problem but for the fast and loose way the Obama administration has played with the law’s language.

The ruling probably will have little immediate effect. Another appeals court handed down a contrary opinion the same day. Administration officials are seeking a ruling from the full D.C. court, which would include more liberal judges. Ultimately, the U.S. Supreme Court will likely decide the matter.

Still, the stakes are high. At question here is the rule of law.

The administration has continually revised or ignored the specifics of the act as it struggled to enforce the bureaucratic monstrosity.

The ruling here concerned the administration allowing health insurance subsidies to be provided to consumers, whether they bought coverage from the state exchanges or from a federally run exchange.

It is a critical distinction. The law said subsidies should be provided to consumers when they buy insurance on an exchange “established by the state.” It said nothing about federal exchanges. But when 36 states, including Florida, decided not to develop exchanges, the federal government did so to ensure citizens in those state would have access to coverage.

The reaction may be understandable. That doesn’t make it legal.

The White House response was typical.

“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health-care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” said press secretary Josh Earnest.

If that was what Congress intended, why wasn’t it spelled out in the law?

It is another case of the administration treating the Affordable Care Act as a merely loose guideline.

Some small flexibility in enacting laws is to be expected. But the Obama administration has ignored deadlines and employee thresholds detailed in the law, all in an effort to make its cumbersome mandates more acceptable.

A couple of hours after the D.C. court’s finding, the U.S. Court of Appeals for the Fourth Circuit in Richmond held that the IRS’s interpretation that the subsidies could go to federal exchanges was a “permissible exercise of the agency’s discretion.”

That seems to us an enormous reach here. Should federal agencies have the discretion simply to make up rules that have no basis in law? This is not a matter of scientists developing standards needed to meet the goals established in an environmental law.

Congress clearly intended for the state exchanges to deliver health care coverage to qualified consumers. When things did not turn out as Congress envisioned, the administration simply recast the law.

Yet Republicans should not greet the ruling with unmitigated glee. Although it underscores the flaws of this haphazard law, the decision also put in doubt health care coverage for an estimated 4.7 million Americans, close to a million in Florida.

They could suddenly become more passionate this election cycle.

Republican candidates may want to start addressing their need for coverage, and not simply talking about jettisoning Obamacare.

It is too bad the two feuding parties won’t cooperate on developing a less burdensome replacement for the Affordable Care Act.

Regardless, the D.C. Circuit’s finding upholds the principle that the law must be based, as Judge Thomas Griffith wrote, on “the words of the statute duly enacted through formal legislative process” — not through administrative fiat.

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