Recently, two separate Federal Courts ruled on whether or not the payment of Obamacare health insurance tax credits [subsidies] are conditioned upon an individual purchasing health insurance through an Exchange run by a State rather than a Federally run exchange. One Court ruled it did matter whether or not the insurance policy was purchased on a State exchange rather than a Federal exchange. The other Court ruled that it did not matter. Two separate rulings on the same issue and same facts. Why did this difference occur?
The Court ruling that health insurance tax credits [subsidies] were only available to those who purchased their insurance from a State exchange was composed of two Judges appointed by Republican Presidents and one judge appointed by a Democratic President. The Democratic judge dissented against the ruling of the two Republican judges who favored the position that tax credits [subsidies] were only available for health insurance policies purchased on State exchanges.
The other Court consisted of three judges appointed by Democratic Presidents. They all ruled that it did not matter if an individual purchased insurance from a State or Federal exchange.
The decisions in each Court were strictly along party lines. It seems like political judicial activism.
Obamacare provides a tax credit [subsidy] for a qualified health plan offered in the individual market within a State which covers the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer … “that was enrolled in through an Exchange established by the State under [§] 1311 of the Patient Protection and Affordable Care Act.”
The verbiage of Obamacare is specific. It says that tax credits [subsidies] are only allowed for insurance policies purchased through State exchanges. It does not say they are available for policies purchased on Federal exchanges.
In January 2012, Jonathan Gruber, an MIT professor, who played a key role in helping write the Affordable Care Act [Obamacare] for Congress, publicly said:
“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.”
Professor Gruber publicly supported this logic during another speech on a separate occasion.
It seems that a major architect of Obamacare supported the specific verbiage of Obamacare which limits tax credits [subsidies] to policies purchased only on State exchanges.
A Court must ask itself whether or not the verbiage in the statute at issue unambiguously expresses the intent of Congress. The verbiage is not ambiguous. It is specific and does not say that tax credits [subsidies] are available to policies purchased through a Federal exchange. The statutory text is not ambiguous and that is all a Court has to determine.
If the statute’s text, at issue, was ambiguous, the Court could then look into legislative history to determine if the intent of Congress differed from the language of the statute. But, Professor Gruber’s statements support the specific verbiage of the statute at issue.
In the Halbig v. Burwell case, the Court, ruling in favor of the literal acceptance of the statute’s verbiage, correctly said:
“As the Supreme Court explained just this term, ‘an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.‘ UARG, 134 S. Ct. at 2446. And neither may we. ‘The role of th[e] [c]ourt is to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy … [T]he fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.’”
You have to ask yourself why four judges, with Democratic affiliations, ruled the other way?
Democrats in Congress state that they simply forgot to include Federal exchanges in the statute at issue and this should be overlooked. But, it was a statute written by a Democratic Congress and signed into law by a Democratic President. The text is unambiguous. Dr. Gruber’s statement supports that the intent of Congress was the same as the text of the statute. Now, the only recourse is to have the statute changed by Congress. The Courts must not change the statute.
This issue will be resolved when the King v. Burwell case [in which the Court changed the statute to include Federal exchanges] is reviewed by the U. S. Supreme Court.