Salon’s Jonathan Siegel is in a frenzy
Obamacare’s grave danger: Here’s how a future GOP president could kill it
Remember those conflicting court rulings about the ACA? Even the favorable one allows a president to interpret it
In passing the Patient Protection and Affordable Care Act (also known as “Obamacareâ€), Congress made a minor mistake — a drafting error that threatens the entire act. Two federal courts of appeals have issued conflicting rulings about how to interpret Congress’ poorly chosen words. And while the more favorable ruling seems likely to prevail, the act is still in grave danger. That’s because even the more favorable one leaves it up to the executive to decide which interpretation of the Act is correct. That means that while Obamacare might seem safe for now, a future president could interpret the act in a way that would destroy it.
This, of course, goes to the subsidies, and whether they are allowed to be applied to those who obtain Ocare insurance through a Federally run exchange, where the text of the law states that subsidies are only available to those who obtain insurance through exchanges established by States. Hey, we told you to read the bill, didn’t we? Nancy Pelosi famously said that “we have to pass the law to find out what’s in it.” We found out that they made a mistake. Or did we? In fact, it was not a mistake, but a means to push States to establish their own exchanges. That’s a story for another time.
This sunny forecast, however, overlooks one critical point.
Assuming the 4th Circuit’s decision ultimately prevails, that decision only allows, and does not compel, the IRS to interpret the Affordable Care Act to provide subsidies for people who buy health insurance on HealthCare.gov. The 4th Circuit did not hold that the act clearly provides for such subsidies; it held that the act was ambiguous. If that’s correct, then it’s up to the IRS to decide whether the act provides for such subsidies or not.
The IRS is an executive agency. It’s part of the Treasury, and the Affordable Care Act technically vests the secretary of the Treasury with the power to promulgate the regulations interpreting the act’s subsidy provision. Of course under President Obama’s Treasury secretary, the regulations allow Obamacare to work. But what about the next president? Whom would President Ted Cruz, or President Rand Paul, or even President Jeb Bush appoint as Treasury secretary, and what would that secretary do?
It’s entirely possible, under the 4th Circuit’s ruling, that the next administration could promulgate new rules denying subsidies to people who purchase insurance on HealthCare.gov. If the statute is ambiguous, a court would have to uphold such an interpretation of the statute unless it were unreasonable. And while there would be a good argument that such an interpretation would be unreasonable (since without the subsidies, the statutory scheme could collapse), it’s rare for a court to find that a statute is ambiguous, and yet to strike down an agency’s interpretation of the statute as unreasonable.
If a future GOP president takes the subsidies away from those who are in states with a federally run exchange (doubtful that it would happen, BTW), he/she would be well within their authority per the conflicting court rulings. Liberals would have no room to complain. Though they still would. That’s what they do.
This is similar to what I discussed prior to the 2012 election, that there is lots of ambiguity within Ocare. Lots of “the Director of HHS shalls and mays”. Same for other agencies. It leaves quite a bit of the actual operational directives up to the Executive Branch. Consider the “contraceptive mandate”: it appears nowhere within the Patient Protection and Affordable Care Act. It was wholly a creation of Team Obama. A GOP President could shut down the contraceptive mandate with a few words. Same with huge parts of the way Ocare operates.
Furthermore, based on the way Obama has willfully changed the law in violation of the law, a GOP president could do things like continuously suspend the individual and business mandates. And the full time work hour requirement could be changed from 30 to whatever they want.
Siegel calls the court rulings a “grave danger” to Ocare, and well he should. He notes how important the 2016 election for President is vis a vis Ocare. I’d agree.
