Obamacare Is Under Attack In The Courts Again

(The image above was found at nywcc.org.)

The die-hard opponents of the Affordable Care Act (Obamacare) have not given up. This time they are attacking the provision of the law that helps those not making enough to buy insurance with a government subsidy -- and unfortunately, they have found some judges that agree with them. A three-judge panel of the District of Columbia Circuit Court of Appeals has decided, in a 2-1 vote, that the federal government cannot give a subsidy to those who bought their insurance through the federal government exchange.

The two judges (both appointees of George W. Bush) based their decision on a section of the law that said tax credits can only be applied "through an exchange established by the state". The federal government disagreed with that interpretation, saying the intent of Congress was clear that the subsidies should apply to all citizens who qualify for it, regardless of what state they live in -- and in fact, that intent is why the federal exchange was created.

Further complicating this matter is the fact that a different appeals court, the 4th Circuit Court of Appeals (in Virginia), reached just the opposite conclusion -- that the subsidies granted through the federal exchange were legal and permissible. If both of these decisions stand, then this issue will have to go to the Supreme Court for a final decision. That might be avoided by an appeal to the full District of Columbia Circuit Court of Appeals (where 7 of the 11 judges are Democratic appointees).

This is a serious matter, and could gut Obamacare -- especially in the Republican-controlled states that refuse to create a state insurance exchange. There are currently 36 states without a state exchange -- and in those states about 5.4 million people signed up for insurance through the federal exchange (and about 87% of them received a subsidy to help pay for the insurance -- about 4.7 million people). If the decision is allowed to stand, it would mean these states would forfeit about $36 billion in subsidies (with Texas at $5.6 billion and Florida at $4.8 billion being the hardest hit states) -- and insurance premiums for those who needed subsidies would rise by an average of 76%. That means millions in those states could no longer afford insurance.

I don't think the House and Senate Democrats should wait for a court decision -- by either the full Distict of Columbia Circuit Court of Appeals or the United States Supreme Court. They should immediately file a bill to fix this supposed "glitch" in the law -- and dare the congressional Republicans to block it.

If the Republicans did block it, which they would probably do to keep their teabagger base happy, then Democrats should make sure that blockage gets as much coverage in the media as possible -- and keep reminding voters of it until election day. It could be a difference-maker in November, because the millions who will lose their insurance, or have to pay a much higher premium, are not going to be happy voters.