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Halbig v. Burwell, Obamacare and frantic liberals

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Liberals have been frantic ever since the DC Circuit Court of Appeals ruled that people who bought insurance through federal exchanges weren't eligible for Affordable Care Act, aka Obamacare, subsidies. Some liberals tried characterizing the ruling as a way to gut Obamacare because of "a drafting error." Sean Davis exposed that lie in this expertly-written article.

This morning, EJ Dionne's column characterizes the ruling as the work of overly ideological judges who simply hate the ACA:

By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.

EJ Dionne's column reads like a hair-on-fire diatribe. It isn't the work of a man who did his research and went where the evidence took him. The truth is that the three-judge panel ruled based on the fact that the legislation says the only people eligible for federal subsidies are people who enrolled “through an Exchange established by the State.”

Here's one of Dionne's chief arguments:

When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for states that bowed out. There are 36 states under the federal exchange.

The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.

Sloppy assumptions usually make for terrible laws. That's the case here. Sean Davis' article utterly demolishes Dionne's argument:

Let’s take a step back to see how plausible that explanation is. There are two types of exchanges: state-established, and federally established. The statutory authority for state-based exchanges comes in section 1311 of Obamacare. The statutory authority for a federal exchange in the event that a state chose not to establish one comes from section 1321(c) of Obamacare. Right off the bat, we have two discrete sections pertaining to two discrete types of health exchange. Was that a “drafting error”?

The fact that Sen. Baucus created different sections for the different types of exchanges was required because the federal government didn't have the authority to tell a state that its budget had to pay for something. Part of the original ruling on Obamacare said that the federal government couldn't force states to expand Medicaid. There's more to this argument than that, though:

Most important, we have the sections of the law providing for tax credits to help offset the cost of Obamacare’s health care plans: sections 1401, 1402, 1411, 1412, 1413, 1414, and 1415. And how do those sections establish authority to provide those tax credits? Why, they specifically state ten separate times that tax credits are available to offset the costs of state health exchange plans authorized by section 1311. And how many times are section 1321 federal exchange plans mentioned? Zero. Was that yet another “drafting error”?

The specific phrase “established by the State under section 1311″ can be found twice in the tax credit title of Obamacare. The first instances relates to the size and the second to the scope of the tax credit subsidy. How many times is the phrase “established by the Federal government/Secretary under section 1321″ found? Zero. Was that also a “drafting error”?

In this paragraph, Mr. Dionne argues for something that he can't prove:

Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.

Until Mr. Dionne can cite which "other parts of the law clearly assume that the subsidies" apply to everyone, you're free to discout Mr. Dionne's statements. What is clear is that Mr. Davis has outlined quite specifically what the ACA says about who's eligible for federal subsidies.

Liberals argue that we have to look at the legislative intent. Let's suppose a different situation on a different bill. Let's suppose that a tax reform bill is written. It goes to conference committee, where Patty Murray and Paul Ryan reach a deal that the top tax rate will be 30%. Next, let's assume that the draft of the legislation includes a top rate of 40%, not 30%.

The bill passes and President Obama signs it into law. The clear intent was for the top tax rate to be 30%. It's highlighted that there's video of the announcement talking about that. What are the odds that Sen. Reid would agree to fix the bill and drop the top rate to 30%?

If you guessed no chance, you'd be right. The point is that liberals only care about legislative intent when they don't get their way.

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