A new threat to Oba­macare

The Washington Times Weekly - - Editorials -

Judges aren’t likely to save us from Oba­macare — Chief Jus­tice John Roberts, who didn’t want the Supreme Court to look bad, crushed that hope. But U.S. Dis­trict Judge Paul L. Fried­man de­serves credit for do­ing the right thing in Wash­ing­ton on Tues­day, al­low­ing a law­suit to chal­lenge one of the least de­fen­si­ble parts of the pres­i­dent’s health care takeover, his scheme of sub­si­dies.

The ad­min­is­tra­tion doled out free­bies to res­i­dents of the states that de­clined to es­tab­lish Oba­macare ex­changes, which is con­trary to the plain lan­guage of the law. Since the ma­jor­ity of states de­clined to par­tic­i­pate, in­di­vid­u­als have to go to an ex­change run by the Depart­ment of Health and Hu­man Ser­vices or sign up on the dys­func­tional health­care.gov web­site. They get a means-tested tax credit from the fed­eral gov­ern­ment, though the law does not au­tho­rize it.

The Oba­macare statute set up the sub­si­dies as a car­rot to en­cour­age states to es­tab­lish ex­changes. The plain lan­guage of Sec­tion 1401 of Oba­macare re­quires that fed­eral insurance sub­si­dies go only to those “en­rolled ... through an Ex­change es­tab­lished by the State.” The pres­i­dent wants to en­cour­age peo­ple to sign up, so he ig­nores the law and sends the sub­si­dies to fed­eral ex­change par­tic­i­pants any­way.

With the car­rot comes a stick. As the plain­tiffs in Hal­big, et al. v. Se­be­lius ar­gue, avail­abil­ity of sub­si­dies in their states ex­poses them to penal­ties tied to the em­ployer man­date, cur­rently de­ferred, which re­quires com­pa­nies with 50 or more em­ploy­ees to of­fer insurance or pay fines.

The Obama ad­min­is­tra­tion none­the­less ar­gues that it can ex­tend the sub­si­dies to the fed­eral ex­changes on the premise, which sounds flimsy to us, that Congress didn’t specif­i­cally in­clude the fed­eral ex­changes in the text of the leg­is­la­tion be­cause it didn’t an­tic­i­pate that any states would de­cline to set up their own ex­changes.

Judge Fried­man, ap­pointed a fed­eral judge by Pres­i­dent Clin­ton in 1994, brushed away the gos­samer and de­nied the ad­min­is­tra­tion’s re­quest to dis­miss the case. This won’t please the White House, which is not ac­cus­tomed to ar­gu­ment when it blows off dead­lines, and amends, post­pones or re­scinds nu­mer­ous other pro­vi­sions of a law it doesn’t like. With­out the con­sent of Congress, Mr. Obama de­clared a one-year de­lay in the em­ployer man­date and has de­layed en­force­ment of a num­ber of el­i­gi­bil­ity re­quire­ments for the sub­si­dies.

Judge Fried­man de­clined to is­sue a pre­lim­i­nary in­junc­tion against the sub­si­dies, say­ing he would rule on the law­suit’s mer­its by the mid­dle of Fe­bru­ary. That’s too late, as the sub­si­dies are set to kick in on New Year’s Day. It won’t be the last word, but if up­held on ap­peal, Judge Fried­man’s rul­ing would kick the props out from un­der Oba­macare, writ large. With­out the fed­eral sub­si­dies, en­force­ment of the in­di­vid­ual man­date would be all but im­pos­si­ble. Low- and mod­er­ate-in­come Amer­i­cans in 34 states would be re­quired to buy costly Oba­macare-ap­proved insurance poli­cies which, with­out the sub­si­dies, they couldn’t af­ford.

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