UPDATE: Here are two separate judicial decisions. One is judicial activism, but conservatives will love it.
* A WIN FOR ACTIVISM: A D.C. Circuit Court of Appeals panel has ruled 2-1 (two Republicans in the majority) that participants in federally operated health insurance exchanges in 36 states cannot qualify for federal subsidies. These are the states, including Arkansas, that didn’t set up their own health insurance marketplaces and left it to the government.
The ruling does not affect the private option version of Medicaid expansion under the Affordable Care Act, or Obamacare. But some 40,000 Arkansans have signed up for the exchange, most of them receiving subsidies. About 5 million Americans are receiving benefits in the affected states.
* A WIN FOR THE OBAMCARE LAW: Not long after the 4th Circuit U.S. Court of Appeals ruled 3-0 that indeed federally run exchanges COULD qualify for subsidies.
In the 4th Circuit decision, Gregory wrote that it’s “clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill.” He noted that only 16 state-run Obamacare exchanges are currently in place and that the economic framework for the law would “crumble” without federal exchange subsidies.
“Furthermore, without an exception to the individual mandate, millions more Americans unable to purchase insurance without the credits would be forced to pay a penalty that Congress never envisioned imposing on them,” he wrote. “The IRS Rule avoids both these unforeseen and undesirable consequences and thereby advances the true purpose and means of the Act.”
Short run: Status quo.
The Obama administration will ask for a ruling by the entire D.C. Circuit. Opponents can do the same in the 4th Circuit. Whatever either court decides will be appealed to the U.S. Supreme Court. With a conflict between the circuits looming, the Supreme Court will have to enter the battle.
A practical battle looms in states that didn’t set up exchanges if the adverse D.C. Circuit decision holds. Will they really insist that working taxpayers be stripped of federal subsidies in a fit of ideological zeal to continue their battle against Obamacare?
Normally, conservative Republicans don’t like judges who mess with the laws of Congress and state legislatures. Except when they like the outcome.
He notes that the average premium for people who gets subsidies in Arkansas is $94 a month. Without the subsidies, it would be $387. So, sure, if this opinion holds, can I get a Republican vote for royally screwing those 36,000 Arkies (90 percent of those on the exchange get subsidies)?
PS — Tom Cotton, naturally, praises the D.C. judicial activism, which dissenter Harry Edwards describes as just an effort to gut the law. If you can’t pay for your own health coverage, Tom Cotton says, “tough.” Cotton calls the subsidies “unlawful,” in a news release issue either before or maliciously disregarding the 4th Circuit ruling.