Top Obamacare critics join suit against subsidies

Six of Obamacare's fiercest critics in Congress have filed an amicus brief in support of a suit in federal court that seeks to get rid of subsidies for most people who buy insurance online.

Washington Times:

Six senators and two House leaders filed a friend-of-the-court brief Thursday in support of several businesses and individuals who sued the Obama administration, saying the Affordable Care Act clearly states that financial assistance should only flow to people who seek health plans on an exchange "established by the State."

Sixteen states and the District of Columbia decided to run their own insurance exchanges under President Obama's health overhaul, while the rest decided to rely on the federal government's

Plaintiffs in Halbig v. Sebelius and a similar lawsuit out of Oklahoma say the IRS unlawfully extended tax credits to people on the federal exchanges by issuing an administrative rule. If the lawsuit proves successful, millions of Americans could no longer collect taxpayer subsidies to help them buy insurance - a key element to making the new law work.

Sens. John Cornyn and Ted Cruz of Texas, Orrin Hatch and Mike Lee of Utah, Rob Portman of Ohio and Marco Rubio of Florida told the D.C. Circuit Court in their brief that they have "a distinct perspective on how courts should interpret the statutes they write," and that the Obama administration had usurped their authority with its rule.

"To judicially amend that provision now would change the terms of the deal, striking a new bargain that Congress did not and could not have struck," they wrote.

House Ways and Means Committee Chairman Dave Camp, Michigan Republican, and House Oversight and Government Reform CommitteeDarrell Issa, California Republican, joined the brief.

Earlier this week, Mr. Issa's committee released a report that argues the Obama administration did not carefully review the health care law's text and meaning before issuing the rule to ensure that tax credits flowed to all those participating in the exchanges.

The exchanges, launched in October, are a crucial piece of President Obama's reforms that allow people on the individual market to compare plans and qualify for income-based subsidies to defray the costs of coverage.

The Obama administration said the government never intended to treat residents of some states differently than others, and that the secretary of the Department of Health and Human Services "stands in the shoes of" states that opt not to run their exchanges.

It's an interesting assault on the law, taking a less direct approach than outright repeal. And if the intent of Congress in making the subsidies available matters to the court, their argument has considerable merit:

U.S. District CourtPaul L. Friedman sided with the government last month, prompting an appeal.

Republican critics said the judge erred in his decision, arguing authors of the health care law wanted the subsidies to be an enticement for states to set up their own exchanges.

"The district court's decision is especially troubling because it effectively rewrites the plain text of a provision that was the specific subject of extensive negotiations in the Senate - negotiations that culminated in a compromise that made the ACA's enactment possible," they wrote.

But how much will the intent of Congress play into the court's decision - especially since a decision that favors the plaintiffs is likely to destroy Obamacare? Here, federal courts tread very carefully and as a matter of history are not apt to overturn established laws. They would much rather pass the buck on to the Supreme Court who may, or may not hear the matter in case of appeal.

Which ever side wins, there will likely be an appeal to the Supreme Court anyway.

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