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Wednesday, May 23, 2018
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Obamacare’s flesh wound

That shiver of excitement shared by Obamacare opponents Tuesday shouldn’t be mistaken for ultimate triumph. Yes, the D.C. Circuit Court of Appeals, the second highest court in the land, dealt a blow to Obamacare when it ruled in favor of the law as it is written and against after-the-fact regulatory whim.

At issue is whether Obamacare applicants through federal exchanges qualify for tax subsidies. The law as written lays out plainly that only those who apply through state exchanges are eligible. Just this moment, however, 36 states have not set up their own exchanges, affecting about 4.7 million subscribers. No matter, said the IRS, which unilaterally rewrote the law to include federal exchange applicants, too.

Not so fast, said the D.C. Court. Conceding that there would be disruption caused by their ruling, Judge Thomas Griffith — a George W. Bush appointee known as a moderate — wrote this for the majority:

“But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process.”

The decision was narrow — the judges split 2-1 — and the finding, wrote Griffith, was achieved, “frankly, with reluctance.” Moreover, with liberals outnumbering conservatives 8-5 on the court, the White House’s new strategy is to get a review by the full D.C. court. Nonetheless, with the Fourth Circuit, in Richmond, Va., ruling in favor of the administration the same day, the ultimate sorting surely will happen in the U.S. Supreme Court.

In the meantime, the administration’s argument simply doesn’t wash. The disputed section of Obamacare was in no way an act of hasty oversight, but instead was brazenly purposeful. The drafters were counting on buy-in across the land marked by general rejoicing among the citizenry that would put heat on the various legislatures and governors to fall in line.

Instead, nothing of the sort has happened. In the years since it was passed and we famously got to know what’s in it, Obamacare has not soared in the public’s esteem, but instead has remained stubbornly and broadly unpopular.

Worse, if such a thing is possible, exchanges have proved as problematic on the state level as they were at the federal level, leading even states where lawmakers and governors greeted Obamacare favorably to abandon their efforts, oftentimes after tens of millions of taxpayer dollars were frittered away.

To say the administration didn’t see this coming is an understatement rivaling “If you like your plan, etc.” So now it’s arguing that words mean only what the White House wants them to mean at any given moment. In short, the president wants what is reserved to royalty and dictators.

Unfortunately, federal judges oftentimes appear predisposed to grant this president his assumed status. Chief Justice John Roberts’ tortured ruling that rendered Obamacare constitutional was only one particularly egregious example. The Fourth Circuit behaved similarly in its ruling, intuiting Congress’ intention — everybody should get subsidies — despite the plain language of the law.

If that’s what Congress meant, why didn’t it say so? Because that’s absolutely not what it meant, as was noted above. Congress — and by Congress we mean the historic Democratic majorities in both houses after the 2008 election — meant to have states further broken to the federal saddle.

It’s a dice roll whether SCOTUS will stand up for dictionary definitions, thereby kicking the issue of who gets subsidized back to the legislative branch where it belongs. Either way, however, Obamacare opponents who cheered the close and dismayingly rueful ruling from the D.C. court cannot and should not count on judicial remedies; elections have consequences, and the only sure fix for Obamacare is by restocking Washington with lawmakers willing to repeal it, and a president willing to sign its death warrant.