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OPINION - Obamacare hinges on court rulings again

by Chris Conley

NEWS BLOG (WSAU) The Obama Administration knew that an obvious wording mistake in the Affordable Care Act was going to be a problem. That's why an amendment was offered to correct the language. It didn't have the votes to pass once the House of Representatives fell into Republican hands. So the IRS issued a rule that was intended as a work-around. That's what was struck down today in a 2-1 ruling by the U.S. Court of Appeals in Washington DC.

The issue involves the tax subsidies that people get to help pay for their health insurance. Obamacare, as written, says those tax subsidies are only available to people who get their insurance through state-run insurance exchanges. There are only 14 states that set up their own exchanges. 36 others either refused (including Wisconsin), or allowed the federal government to do it for them.

It's clear to me that the law's intent was for everyone who qualifies to get the subsidies. But the law's language, which says the money is available for exchanges "established by the states", contradicts that. There are others who argue that the intent was to use the subsidies as a carrot to get states to set up their own exchanges. There are others who argue that the actual writing of the law was sloppy and that the words are wrong.

The unpleasant fact is this: when the intent of a law and the words of a law are in conflict, the words need to win out. That's why we put laws on paper... so they can be read, understood and followed. Intentions are forgotten, changed, manipulated and fade over time. The actual text of the word is what's permanent. How can anyone be expected to follow what Congress was thinking instead of what Congress actually voted on?

Shame on Congress -- specifically the hyper-partisan lawmakers who rammed the Affordable Care Act through with votes in the middle of the night on Christmas Eve 2010. You remember them -- they were told by then-Speaker of the House Nancy Pelosi that they had to vote on the bill to see what was in it. Well, what was in the 78-pages of hastily put-together text, was a mistake. Even the democrats who voted for the bill didn't actually read it. Now lawmakers who were so sloppy about doing their jobs turn to the courts to fix what they can't.

This is also one of the tragedies of the hyper-partisanship on Capitol Hill. The Affordable Care Act has other problems. In a simpler time when Republicans and Democrats could negotiate with each other, this court ruling could set off a new round of wheeling and dealing to correct a host of problems with the law. Republicans, for instance, could propose an entire slate of health care changes -- like dropping the individual mandate, removing contraceptives, scrapping the medical device tax and limiting the insurance company bailouts. Democrats would have to make a deal; their law would collapse if today's court ruling stands. If the Obama administration was willing, they'd have an opportunity to finally make the law bipartisan and legitimate instead of rolling the dice on an appeal to the U.S. Supreme Court. But lawmakers will not be able to untangle this mess. Dems will accuse the Republicans of obstructionism. The GOP will remind voters that the other side owns this mess since not a single one of them voted for Obamacare.

Recall that Chief Justice John Roberts saved Obamacare once before. The court ruled that the individual mandate, forcing people to buy health insurance, was unconstitutional. Roberts reinterpreted the law to say the mandate was actually a tax. Might that happen again? Maybe not. Since the first Obamacare challenge, the Supreme Court ruled on a separate case where the Environmental Protection Administration tried to "fix" language in the law through a series of regulations. Last month the U.S. Supreme Court struck that scheme down. Associate Antonin Scalia wrote the majority opinion. Chief Justice Roberts joined that opinion in full. Bottom line: once again, the President's signature piece of legislation is in jeopardy.

Chris Conley

While this blog was being written the 4th Circuit Court of Appeals in Richmond handed down an opposite ruling, 3-0, that the IRS subsidies ARE legal. This all but guarantees the issue will return to the U.S. Supreme Court.