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A Supreme Court Gamble

A Supreme Court Gamble

The exterior of the U.S. Supreme Court is seen in Washington March 5, 2014. U.S. Supreme Court justices on Wednesday appeared to look for a compromise that would enable them to avoid overruling a 26-year-old precedent that made it easier for plaintiffs to negotiate large class action settlements. | (Photo: REUTERS/Gary Cameron)

Constitutional government in America, but could lead to even further damage to the rule of law. No, I am not referring to the elections.

The Supreme Court announced that it will take up the case of King vs. Burwell. In this case the Obama administration is being challenged over the legality of paying Obamacare subsidies to nearly 5 million enrollees on, the federal health care exchange. They have paid those subsidies without statutory authority, according to the plaintiff. The Affordable Care Act, also known as Obamacare, explicitly allows those subsidies only to those who enroll on state-run exchanges. If the Supreme Court agrees that the subsidies are illegal under the plain language of the legislation, nearly 5 million people would lose their subsidies. This would be disruptive, to say the least, since 36 states do not have a state-run exchange.

The case is very awkward for the Obama administration. The Obama administration, working with Harry Reid and Nancy Pelosi, wrote the legislation and passed the legislation without the participation of a single Republican. They put in the explicit language that limited subsidies to enrollees of state-run exchanges as a political tool to force states to set up state-run exchanges. A key policy maker for the Obama administration plainly stated as much in a very public way. But once it became clear that many states were not going to set up state-run exchanges, the Obama administration ignored its own legislative language, and paid subsidies to enrollees on the federal health care exchange anyway.

Why did the Obama administration ignore the plain language of the legislation it had itself written? And more to the point, why didn't they ask Congress to just fix it, through a technical corrections bill? Such technical corrections bills are common, after Congress passes complex legislation, and there is hardly any legislation more complex than Obamacare. It's not like the problem with state-run exchanges was a surprise. They knew early on they had a problem, and made the decision to go forward without clear statutory authority, and against the plain language of the legislation itself.

The reason is because the highly partisan, no-Republicans-needed approach to jamming through Obamacare in the first case meant that the President and Harry Reid were afraid to go back to Congress to make needed changes to the Affordable Care Act. The Tea Party had emerged in response to the unpopularity of the way Obamacare was enacted and runaway government spending. Any fixes to Obamacare would not come easily, as they might have if Obamacare had been bipartisan legislation. So fixing something that was a feature of the legislation, (i.e., the political lever to force states to set up exchanges), was going to be even tougher than just fixing the bugs. The President chose to ignore the language of the legislation, and pay subsidies to enrollees on the federal exchange without clear statutory authority.

The President has taken a big gamble here, putting not just his legacy on the line, but even worse, he is putting the American legacy of democratic government, with separation of powers and rule of law on the line as well. If the Supreme Court decides the language of the law means the subsidies are illegal, it will disrupt Obamacare, and potentially affect the insurance premiums for millions. It will add one more stain on the record of ineptitude in the rollout of Obamacare. And that is the best outcome. The worst outcome is if the Supreme Court decides that the plain language of the legislation, which the President's own team wrote intentionally, is not so plain after all. If they rule the President can ignore or rewrite by regulation provisions of legislation that they think are in error, without getting congressional authorization, the case will disrupt not just Obamacare, but our entire system of separation of powers.

It is the continuing legacy of the Harry Reid, Nancy Pelosi, and Barrack Obama strategy to jam through Obamacare. It has cost the Democrats control of the House of Representatives in 2010, and now control of the Senate in 2014. It has resulted in distrust and gridlock in government for five years. And now it has put the nation and this President in a no-win situation at the Supreme Court.


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