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There's Hope for Health Care Yet! Competing Verdicts on Critical Obamacare Provision
   Friday, August 8, 2014   at   9:00 AM

Two years ago the U.S. Supreme Court threw the overwhelmingly flawed Affordable Care Act a lifeline, ruling that one of its most contentious aspects – a financial penalty for not buying health-benefit coverage – was in fact a tax.

Another vital aspect of the law is being debated in the federal court system, and is likely headed to the U.S. Supreme Court for its term that begins in early October. If the high court rules that the law must be carried out as it was written, it will likely spell the end of the federal effort to take over the health-care system. That would be a good thing.

Two appeals-court decisions last month ruled on the issue of whether the federal government can offer tax credits and financial subsidies to persons who purchase their benefit plans through exchanges set up by the federal government. Plaintiffs in at least two lawsuits contend that the IRS was making the subsidies available to persons in every state, even though the statute makes the subsidies available only persons who purchase benefit plans through exchanges set up by individual states. That's important because 34 states chose not to set up their own exchanges; the federal government operates the exchanges in those states.

In Halbig v. Burwell, the U.S. Court of Appeals for the D.C. Circuit ruled against the government, finding that the Affordable Care Act does not authorize subsidies for persons who have purchased coverage through the federal exchange. In King v. Burwell, the Richmond, Va.-based Fourth Circuit Court of Appeals ruled for the government, stating that Obamacare does indeed permit subsidies to those who purchase coverage through the federal exchange. Burwell is Sylvia Matthews Burwell, sworn in as the administration's Secretary of Health and Human Services in June.

Conflicting rulings at the appeals-court level often prompt the U.S. Supreme Court to take a case from among the many it is presented. The high court is currently on recess and will reconvene in October. So while it's not assured that the issue will be decided by the Supreme Court, precedent strongly suggests that it will.

The plaintiff in King v. Burwell has already appealed the appeals court's verdict to the Supreme Court, in a motion known as a petition for certiorari. The Justice Department, however, hasn't followed suit. Instead, it has asked for a full appeals court review of the D.C. Circuit panel's decision in Halbig. The department's request is for what is known as an en banc rehearing. The appeals court has asked for a response to the motion from Halbig, according to Jonathan Adler of The Washington Post.

Adam J. White, a veteran Washington litigator, wrote Aug. 4 in The Wall Street Journal that the decision to conduct an en banc review rests with a majority of the appeals court's 11 judges.

En banc rehearings are rare these days, White notes. There have only been two rehearings so far this year; in 2013, there were none. Further, White states, rehearings are traditionally reserved for difficult questions of constitutional law. The issues in Halbig are, legally speaking, much more simple: does the law say what the plaintiffs say it says, or what the defendants say it says?

It's also worth noting that in the rarefied air of the appeals bench, reharings are challenges to the collegiality of the court, something that justices of all political flavors strive to maintain for the most part. Voting for a rehearing apparently strains the trust and respect that exists among the court's judges, and that's why it doesn't happen very often.

Defenders of subsides to persons who purchase coverage through the federal exchange have had a difficult task lately, explaining to the public that Halbig was decided wrongly because Congress clearly did not mean the law to do what it, as written, does. The problem with that is that archived video has surfaced with architects of the law stating that subsidies were indeed limited to those who purchased coverage through state exchanges. The term “speak-o,” meaning the verbal version of a typographical error, even entered the lexicon briefly in an attempt to explain away what at the time certainly seemed like an authoritative enough explanation of the Affordable Care Act in the year after it was passed. The subsidies, which Congress counted on for the viability of the Affordable Care Act, are clearly in jeopardy now, and will be until the Supreme Court rules on the matter.

CMC has criticized the Affordable Care Act for many reasons, primarily because of our conviction that it greatly expands federal funding of abortion and insurance coverage for abortion. We'll eagerly anticipate the Supreme Court's decision in an anticipated hearing over the Halbig and King cases. Until then, we can only hope that Congress never again passes a bill before it finds out what's in it.
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