NY Times Very Concerned Over SCOTUS Taking On Ocare Subsidies Case

They really are Very Concerned. SCOTUS Blog reported Friday

The Supreme Court, moving back into the abiding controversy over the Affordable Care Act, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by sixteen states, and not at federally operated sites in thirty-four states.

Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference.

Hot Air takes a deep dive into the issue, well worth the read. The issue comes down to the way Democrats wrote Ocare, setting it up so that only those who obtain insurance through State run exchanges are eligible for subsidies. We could say “hey, read the bill next time,” but they intentionally set it up so that States would want to buy into Ocare, rather than having the federal government run their exchanges. The NY Times Editorial Board is appalled that the Supreme Court could decide that language has meaning

Health Care Reform Imperiled

Will five Supreme Court justices eliminate essential health care subsidies for more than four million lower-income Americans, based on a contorted reading of four words?

It sounds inconceivable, but that would be the effect of a ruling in favor of the latest legal challenge to the Affordable Care Act. On Friday, the justices announced that they would hear that case, King v. Burwell, a dispute over the meaning of a single phrase — “established by the State” — in the 900-page health-care reform law.

Because one subsection of the law says these subsidies are available on an exchange “established by the State,” the plaintiffs claim there can be no subsidies for anyone living in the 36 states where the federal government established a health exchange after state officials did not.

The NY Times and Ocare supporters do not like that language is important. That said, it is not just one subsection, is a major component of How The Ocare Subsidies Work.

In cases where there is a dispute over statutory wording, a well-established legal principle requires courts to defer to a government agency’s reasonable interpretation of the language at issue. In fact, the plaintiffs concede that their strained reading of the law could render several other provisions nonsensical.

In other words, the NYTEB knows that Democrats really messed up in crafting the bill, one which the majority of the country is still against.

The Supreme Court itself has said repeatedly that when construing laws, “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”

In fact, one of the key architects of the law, Jonathan Gruber, who was paid $400,000 to help, had this to say in 2012

What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.

That was the intent. It was written that way on purpose. The Democrats could have rewritten it and passed legislation when it was pointed out while they still controlled both the House and Senate. They did not. So, if it’s a mistake, they sure didn’t think so back in 2010. Ezekiel Emanuel has also said the same thing about the intent. The intent was explicit and purposely put into the law as a way to coerce reluctant states into setting up exchanges to get at the federal goodies.

Crossed at Pirate’s Cove. Follow me on Twitter @WilliamTeach.

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