King v Burwell: What does the plain text of the Obamacare law say?

The Plain Text of ObamaCare – WSJ.

The problem…

Unlike the 2012 ObamaCare cases, King v. Burwell is not a challenge to the constitutionality of the health law. To the contrary, the plaintiffs are asking the Justices to vindicate the law’s plain text and uphold the statute that Congress passed in 2010, rather than the version the Administration rewrote. (emphasis added)

How the law was drafted?

The law’s Democratic drafters wanted the states to participate and assumed all of them eventually would, much as with Medicaid and many other familiar programs under cooperative federalism. Conditioning subsidies on state action was meant to give Governors and legislatures an irresistible incentive to contribute to ObamaCare’s implementation and lend political legitimacy. In return, their constituents were eligible for benefits.

This routine legislative arrangement turned out to be an epic political miscalculation. The opposition to ObamaCare failed to ebb as liberals expected, and 36 states refused the invitation to create exchanges. In those states, the law provides for a federal exchange fallback—without subsidies.

What will the judges decide?

In King, the High Court will scrutinize this IRS decree using the traditional canons of statutory construction. The English language is clear: Congress wrote that subsidies would be available on state exchanges only, so Washington cannot deputize itself as the 51st state—especially when the black-letter law is as consistent, tightly worded and cross-referenced as the Affordable Care Act.

To take one example, the Secretary of Health and Human Services was empowered to grant unlimited sums of money to states to establish exchanges. But the law appropriated not a penny for the federal exchanges, and HHS raided internal slush funds to build them. If there is no legal difference between the federal and state exchanges, why did HHS need this budget ruse?

It turns out that in prior drafts, Federal exchanges were eligible for subsidies but that text was purposely removed…

As the Mountain States Legal Foundation and other amici briefs point out, previous versions of the Affordable Care Act extended subsidies to the federal exchanges too. But that language was deleted in the secret negotiations to combine various Senate bills. After Scott Brown’s Massachusetts special election ended the Democratic supermajority, Democrats accepted and President Obama signed the final Senate bill as the last helicopter out of Saigon.

The President cannot now unilaterally revise those details because they are politically inconvenient. Blessing this lawless behavior sets a dangerous precedent, handing the bureaucracy a license to reshape statutes without the consent of Congress. King is an opportunity for the Court to rebuke this growing merger of legislative and executive power.

NOTE: the emphasis added in all the above quotes are from the poster.

And the last paragraph sums up it. Can the President unilaterally revise the details of the law? Lately it seems that he can, what will the Supremes decide?


From the commenter Alan Wolfe:

The language of Obamacare is clear.  Subsidies are available only through exchanges established by the state.  SCOTUS should be true to their oath and declare subsidies granted through federal exchanges illegal.

If the insurance industry and the health care industry are turned upside down as a consequence, so be it.

Americans need to learn that laws have consequences, and to hold their legislators responsible for getting it right. The progressive left, in their ideological haste to write a comprehensive change to health care got it wrong.  Now let them pay the price for their hubris. (emphasis added, what a surprise?)

I couldn’t agree more, except I don’t believe there is a price to pay on the Progressive side. In fact, if the Republican’s aren’t prepared to “run the gauntlet” perfectly, they will be the ones paying the price.


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