October 24, 2021


supreme courtIt is more likely than not, that the two opposite interpretations of the legality of subsidies given in the A.C.A. “Obamacare”, by the federal exchanges will need clarification by the Supreme Court. The dispute is based on a rule in the law that states that subsidies, in the form of tax credits, will go to those who purchase insurance in an “exchange established by the state.” A federal appeals court in Washington in a two to one decision, ruled that congress did not provide that help to purchases done through federal exchanges, thus throwing into chaos the purchases in the 36 states that did not set up exchanges. Judge Thomas Griffith, writing for the majority in Halbig v Burwell, acknowledges the disruption that this decision will provoke in the life’s of citizens but stated that “the principle of legislative supremacy”, has more weight.

The opponents of Obamacare had just started to celebrate this potential blow to the law, when in a similar case Virginia’s court of appeals made a different judgment. This court ruled that the government had a stronger position albeit “only slightly”, based on the clear intent throughout the other provisions of the A.C.A., to help those who could not afford the purchases. What is again at issue is the growing debate between leeways given to the executive branch to administer a law, changing its execution for practical or obvious reasons, against the abuse of this often used mechanism, “de facto” changing the law. The justices are divided in this issue, some following more closely the law as written as congress intent, and others that would leave the agencies to interpret the “ambiguities”. In the case of this dispute if we would apply the intent, versus the wording it might seem obvious that offering the subsidies were to congress more important than by whom. But then, one might ask, why such a clear statement assuming this responsibility to the states? It is not unusual that the federal government uses economic incentives to states in order to force a mandate. Was this the reasoning? Jonathan Gruber was touted by Obama and his acolytes as the “architect of the A.C.A.”, mainly because he also had a role in the law established by Romney.

In 2012, while doing his role of praising Obamacare to industry groups said “the law that has state governments administer enrollments, I think 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”, thus undermining the alleged intent previously cited and highlighting the difficulty of ascertaining intent of other’s thoughts. As far of what will the Supreme Court decide, in the event that they decide to hear the case, a constitutional scholar Jonathan Turley, George Washington University Professor, believes that it might be “the torpedo” that sinks Obamacare. Important to note that Mr. Turley is a defender of the separation of powers and, even as a noted liberal thinker, has strongly criticized the Obama administration for, in his opinion, acting in ways that are unconstitutional.

Two recent SCOTUS decisions from opposite ideological representatives might bring light, and further confusion, to what might be ahead. Elena Kagan, an Obama appointee, in the case Michigan v Bay Mills, opined “but this Court does not revise legislation, as [the IRS] proposes, just because the text as written creates an apparent anomaly as to some subject it does not address. Truth be told, such anomalies often arise from statutes, if for no other reason than that Congress typically legislates by parts-addressing one thing without examining all others that might merit comparable treatment”. Judge Anthony Scalia , not surprisingly, agrees on following the wording of the law in Utility Air v EPA, “we conclude that [IRS’s] rewriting of the statutory [criteria for tax-credit eligibility] was impermissible…An agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting unambiguous statutory terms. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always “‘give effect to the unambiguously expressed intent of Congress.”
Interesting times to be sure, with the demise of the much debated Obamacare law at stake.
Fernando J Milanes MD