Could a single word undo ObamaCare?

posted at 8:41 pm on July 17, 2012 by Ed Morrissey

Wouldn’t that be nice?  In the haste to pass ObamaCare through arcane parliamentary maneuvers — whoever heard of “reconciliation” outside of the Beltway before Scott Brown won a US Senate seat? — maybe the drafters of the Affordable Care Act made a one-word mistake in the 2800-page bill that would demolish the entire law.  After all, didn’t Nancy Pelosi say we need to pass it before we know what’s in it?  According to an argument by two Cato Institute scholars, one word may make it impossible for the federal government to supply the subsidies needed to get people to use the exchanges.  The extract gives the bare bones of their case:

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Because the granting of tax credits can trigger the imposition of fines on employers, the IRS rule is likely to be challenged in court.

Sarah Kliff expounds further on the argument for the Washington Post’s Wonkblog:

Let’s back up and look at Adler and Cannon’s argument. It starts with the the Affordable Care Act’s defining a health insurance exchange, in scintillating Section 1311, as a “governmental agency or nonprofit entity that is established by a state.”

The last three words are the crucial ones, because they indicate that only states can establish exchanges under that Section 1311. There’s a whole other part of the law, Section 1321, that allows the federal government to set up federal exchanges in states that do not take on the task themselves.

This all matters in the all-important Section 1401, where it lays out who can get a federal insurance subsidy. There, the law says that only those who are “enrolled … through an Exchange established by the State under 1311.”

If there’s a smoking gun in this case, it’s that sentence right there. It says that the only people who can qualify for subsidies are those who get coverage through a state-based exchange.

“The statute was very poorly drafted if the intent was to cover federal exchanges,” says Kevin Outterson, a Boston University professor who focuses on health policy and who previously worked as a tax attorney. “If I had a client who had recently lost some money on a provision like this, I’d say you have a pretty good chance to win that case.”

Does that sound familiar?  It’s probably the same advice the attorneys gave the plaintiffs in the ObamaCare challenges at the Supreme Court this session.  They had a lot more grounds for optimism in that case, too.

All due respect to Outterson, but it seems as though he didn’t pay attention to Chief Justice John Roberts’ contortions.  In order to find that the individual mandate in ObamaCare passed constitutional muster, he had to consider it a tax while at the same time consider it not a tax to get past the Anti-Injunction Act.  A Chief Justice who can do that — while accompanied by four liberal justices — can certainly overlook a conflict between two different clauses in order to let the federal government run federal subsidies through federal exchanges.

Don’t get me wrong — I’m certain that Adler and Cannon have a sound legal argument, and I’d certainly love them to be right.  Even if they are, though, the technicality is so minor, and the intent clear enough, that the court that created a non-tax tax (or a taxalicious non-tax, depending on your preference) will hardly bother to toss out the entire mechanism over a single word.

There is, however, one word that will work to end ObamaCare: repeal.  It’s time to stop looking for courtroom Deus ex machina arguments and start working on the political solution.

Or you can try this word, if you still want to indulge in some magical thinking:

Naah — too cheery.  Maybe it’s this one?

Okay, okay … that’s two words.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Sad sigh smiley.

And possibly Bishop.

Axe on July 17, 2012 at 8:45 PM

Vote Republican will undo as well.

And then let them know if they don’t, send them white wigs, tea bags and pink slips. The first of many Tea Party congressmen/woman with no Republican affiliation will be in the 114th congress in 2014

tjexcite on July 17, 2012 at 8:57 PM

The rule of law can be abandoned as far as the Supreme Court goes. Roberts made that very clear. You are not going to roll back the leftists or their Republican enablers by waving a piece of paper or a law book at them.

sharrukin on July 17, 2012 at 9:04 PM

Obamacare is not going to be undone by statutory conflicts, and it won’t be undone by reconciliation either. Roberts will see to that. The only way to get rid of it will be through appointing a conservative majority to the SCOTUS, and I don’t see Romney doing that.

Stoic Patriot on July 17, 2012 at 9:05 PM

TWO words – TWO choices: REPEAL or REVOLUTION. Join or Die.

Pork-Chop on July 17, 2012 at 9:06 PM

A non-tax tax. Now I’ve heard it all.

John the Libertarian on July 17, 2012 at 9:06 PM

OMG,Hooaan is making an@$$ of himself lying from his every orifice about ObamaTax…on Hannity

burrata on July 17, 2012 at 9:07 PM

It’s doubtful a traitor will be swayed by a technicality.

EddieC on July 17, 2012 at 9:08 PM

I dunno. Either Roberts will see this as a way out of the mess he created or he will circle his wagons. Still worth a shot in court. If anything, it exposes what a sh*tty job he did upholding this piece of cr*p.

Blake on July 17, 2012 at 9:09 PM

In the haste to pass ObamaCare through arcane parliamentary maneuvers — whoever heard of “reconciliation” outside of the Beltway before Scott Brown won a US Senate seat?

It wasn’t haste, it was America-hating desperation. The ObamaScare law was built on the Senate bill which was never intended to be final law. That bill was only fashioned to make it through one more Senate vote and then have everything changed in the final conference. That’s why the slimeball Dems in the House didn’t want to have to vote on its exact language – the outrageously stupid DemonPass idea – and why the criminal payoffs and kickbacks were still included. Barky forced through a bill specifically designed NOT to become law because he wanted to force it through or break the system in the process. This was even after Rahmbo said that health scare was finally dead with the election Scott Brown. But our GOP stalwarts still couldn’t b bothered to force a complete reading of anything on the floor to try and stop it or try anything else (other than a really stupid amendment that ended up being a big nothing-burger).

2700 pages … It’s offensive just to have passed anything that ridiculous, whether people had the time to read it tens times over or not (and no one read it even once).

Benedict Roberts should be impeached and put out on the street for what he did with this travesty. And given how Benedict Roberts the pathetic traitor perverted English in order to uphold the anti-American law, I don’t see how anyone thinks some grammar or language is going to hold the IRS back from their new Roberts super-powers. If a mandate and penalty can become a tax then no English in black and white on a law has any meaning in Benedict Roberts’ world, which we all, unfortunately, have to live in.

ThePrimordialOrderedPair on July 17, 2012 at 9:10 PM

John Roberts’ face has become one of the few I cannot stand to see.
At least we don’t see him on TV, or on adds, or his wife on ads, all over the internet, all the time.

GaltBlvnAtty on July 17, 2012 at 9:10 PM

This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges.

I’m sure that this is nothing that John “the taxer” Roberts can’t rewrite to his liking.

RJL on July 17, 2012 at 9:12 PM

I’m going back to listen to Romney’s speech again…!

Seven Percent Solution on July 17, 2012 at 9:14 PM

Most assuredly the Court will remind any possible plaintiffs that The United States of America is in fact a state under the common international understanding of the word state. or as the french say l’etat.

xkaydet65 on July 17, 2012 at 9:14 PM

Lets see,off the top of me mind,with no googly!!

AbracadabraXbeallidoshus sumpin…sumpin!!

canopfor on July 17, 2012 at 9:15 PM

There I was snickering about the legal problem the law had. Our POTUS is smarter than I. Just terrorize the SCOTUS.

IlikedAUH2O on July 17, 2012 at 9:15 PM

States now have “no standing” to file lawsuits against fed government…

http://www.thegatewaypundit.com/2012/07/take-your-religious-freedom-shove-it-federal-judge-throws-out-lawsuit-against-obamatax-hhs-mandate/

HHS Mandate update!

THIS needs to go viral NOW: http://www.youtube.com/watch?v=Wuc2yBxXQo4&feature=player_embedded

UnderstandingisPower on July 17, 2012 at 9:16 PM

Post about Mitt Romney’s fantastic speech in PA today. Truly a miracle.
I am liking our chances much more after watching it.

the new aesthetic on July 17, 2012 at 9:20 PM

It is stupid to suggest that attacking Obamacare on one front via congress is the way to go. Attacking Obamacare on all fronts is the smart way. That means the continuation of legal challenges.

jdun on July 17, 2012 at 9:21 PM

Yes, one word.

Revolution.

sartana on July 17, 2012 at 9:22 PM

Has anyone noticed how the word “depression” has crept into the MSM vocabulary in the last 2 weeks…

It’s always been around blog sites since 2008, but now it’s entered the mainstream…not good…

PatriotRider on July 17, 2012 at 9:23 PM

Don’t worry, McConnell will sneak it in while were sleeping.

AmeriCuda on July 17, 2012 at 9:27 PM

Obamacare is not going to be undone by statutory conflicts, and it won’t be undone by reconciliation either. Roberts will see to that. The only way to get rid of it will be through appointing a conservative majority to the SCOTUS, and I don’t see Romney doing that.

Stoic Patriot on July 17, 2012 at 9:05 PM

Actually, I thinki judges are one area in which the conservatives could influence Romney. RINOs don’t care as much.

Obama supposedly wants Kamala Harris, the lefty AG of CA, and Holder buddy, to be the next pick.

If Romney nominated Janice Rogers Brown, I doubt enough Dems would oppose her to keep her from getting a floor vote, even if it got Clarence-Thomas-ugly.

The next vacancy will likely be Ginsberg’s seat. Better Brown than Harris.

Wethal on July 17, 2012 at 9:29 PM

One word will end ObamacareTax: VOTE.

profitsbeard on July 17, 2012 at 9:36 PM

Roberts has sold his soul on Obamacare, no argument would cause him to change his mind and this is pretty weak tea compared to the tax issue.

waelse1 on July 17, 2012 at 9:36 PM

Rules Schmules
Words Schwords

SouthernGent on July 17, 2012 at 9:40 PM

Elect. November 6, 2012

Replace. January 20th, 2013

Repeal. January 23, 2013

thatsafactjack on July 17, 2012 at 9:42 PM

Non- profit health care exchanges.

What could go wrong ?

FlaMurph on July 17, 2012 at 9:46 PM

Ugh…The smirking twerp is back! I can’t believe I used to like him! Actually, did he ever come back from Malta?

Conservative Independent on July 17, 2012 at 9:47 PM

Post about Mitt Romney’s fantastic speech in PA today. Truly a miracle.
I am liking our chances much more after watching it.

the new aesthetic on July 17, 2012 at 9:20 PM

…he needs to have everyday be like today until the press quits diverting people on other topics and is forced to start paying attention

KOOLAID2 on July 17, 2012 at 9:49 PM

Ugh…The smirking twerp is back! I can’t believe I used to like him! Actually, did he ever come back from Malta?

Conservative Independent on July 17, 2012 at 9:47 PM

I hope he moves there.

Dr Evil on July 17, 2012 at 9:49 PM

The rule of law does not matter too our regime of outlaws. So if Bummer gets another term in office you can forget about it.

Sherman1864 on July 17, 2012 at 9:52 PM

You’re kidding, right?

Ed, with this group nothing surprises me anymore. Ed what’s up with your show? I noticed the changes to the set. But no shows the last two days. Is it because you are covering for Allah. You work too hard. ; )

Bmore on July 17, 2012 at 9:54 PM

If Obama is defeated this November, that would definitely be supercalifragilisticexpialidocious. Thanks, Ed, for bringing back what was my favorite song when I was about 6.

Bigfoot on July 17, 2012 at 9:54 PM

All due respect to Outterson, but it seems as though he didn’t pay attention to Chief Justice John Roberts’ contortions. In order to find that the individual mandate in ObamaCare passed constitutional muster, he had to consider it a tax while at the same time consider it not a tax to get past the Anti-Injunction Act. A Chief Justice who can do that — while accompanied by four liberal justices — can certainly overlook a conflict between two different clauses in order to let the federal government run federal subsidies through federal exchanges.

Repeal, as Ed stated, is the only way to kill this monster, but a part of me would love to see the Cirque du Soleil machinations that Roberts would have to do to get through this one. This issue would make his other contortion look like hopscotch, and maybe sober him up or provide enough intervention for a personal constitutional rehab event.

They need to press forward on this issue, big time.

TXUS on July 17, 2012 at 9:55 PM

Sorry Ed, it should have been in the form of a ?

Bmore on July 17, 2012 at 9:55 PM

thatsafactjack on July 17, 2012 at 9:42 PM

If I recall correctly there are a couple of key things that must happen before it can come up and be repealed via the 51 vote option. Which is the only way we can repeal it. That means it probably won’t occur in January. If it hasn’t occurred by the end of May then congress has a intention of repealing it.

chemman on July 17, 2012 at 9:58 PM

It is important to continue to heap scorn on the traitor John Roberts because he has shown he can be co-opted if people hold him in low enough regard.

Obviously he will do whatever he likes regardless of what the law says. That means he has to be lobbied or pressured instead of being persuaded through reason. The right gives up too easily. Pressure him and give him this issue to get back in the good graces of decent people everywhere and see what happens. We have nothing to lose at this point.

And this strategy has the virtue of allowing us to call a traitor a traitor without pretending otherwise or mincing words. When we start to do that we are no better than he is really. He can live in a fantasy world of his own making but we do not have to accept it.

Voluble on July 17, 2012 at 10:00 PM

Sleep well Ed. Good night.

Bmore on July 17, 2012 at 10:12 PM

I hope he moves there.

Dr Evil on July 17, 2012 at 9:49 PM

Nah, I want him to come back. I want someone to drag his butt up to Congress and explain his twisted opinion.

Conservative Independent on July 17, 2012 at 10:12 PM

This is a clusterfark of a nightmare.

Philly on July 17, 2012 at 10:25 PM

Words are important.

williampeck1958 on July 17, 2012 at 10:26 PM

A Chief Justice who can do that — while accompanied by four liberal justices — can certainly overlook a conflict between two different clauses in order to let the federal government run federal subsidies through federal exchanges.

Actually, the four concurring justices didn’t concur on Robert’s opinion, only his result. Robert’s overlooked a conflict that arose only because Congress mislabeled a tax as a penalty. So he essentially ignored the intent insofar as Congress intended a penalty, and judging by its workings and effects determined it was a tax.

This technicality is far different and far more problematic for the Obama administration. The language is absolutely clear, and there is no conflicting interpretation that can be place on it, as when a tax is miscalled a penalty. This is authorizing legislation, and it just can’t authorize anything it doesn’t explicitly authorize.

No one should be surprised that this Frankenstein monster has a fatal flaw, given its authors and their methods.

novaculus on July 17, 2012 at 10:31 PM

There is only one solution to a government that has run amok, dissolve it. That’s what the Founders did and said we should do it if the government gets out of hand. Lies become the truth, wrong is right, and injustice becomes justice, that is what we have today. “When injustice becomes law, then rebellion becomes duty”- Thomas Jefferson

savage24 on July 17, 2012 at 10:46 PM

My finger’s bleeding…

Akzed on July 17, 2012 at 10:52 PM

There’s too many liberal justices.

Speakup on July 17, 2012 at 10:57 PM

If you think words matter to liberals, you don’t know ANYTHING about how Communism works.

logis on July 17, 2012 at 11:08 PM

The single word is nullification.

Dante on July 17, 2012 at 11:10 PM

Typical RINO-ism on Ed’s part. Don’t bother trying, it’s too late, we lost. Disgusting. It’s exactly why we rot as a party. Thank’s Ed. Instead of using your influence and potentially looking like you failed, you advance the losing cause and appear to be “reasoned” and immune to the failures of a principled fighter. It’s like those who watch the World Series without picking a team to root for, but on a much more grand and critical scale. Excuse me while I go vomit.

SuperBunny on July 18, 2012 at 12:13 AM

We are a nation of laws…Here’s the catch the law is whatever Obama and his gang say it is on any given day and on whether he thinks enforcing it is politically beneficial. And the Supreme court has pretty much said that’s OK by them.

bluesdoc70 on July 18, 2012 at 12:16 AM

Yup, any picture of Roberts makes me ill now.
I feel like I’ve been kicked in the stomach by this bastid.

Harriet Miers must have a big ass smile on her face.

Typicalwhitewoman on July 18, 2012 at 12:23 AM

A 3D chess master, Roberts is…

Gohawgs on July 18, 2012 at 4:23 AM

Actually encouraging that the economy can still afford the luxury of such silver lining miners. This word thing is a very deep vein. Not very productive. We’re witness to the birth of a new False Hope industry. Such currently-respected-but-fading institutiona likw Cato and (fading fast) NRO verge on the irresponible with such flailing.

curved space on July 18, 2012 at 6:32 AM

Hey! We’ve got two ads automatically starting up when we come here. We have to search for them and even when we find them we can’t stop them till they finish. Turnoff the audio unless we turn it on. You’ve got to stop this.

NotEasilyFooled on July 18, 2012 at 6:54 AM

Can someone please tell me why a party hell-bent on repealing Obamacare wants to elect a governor who implemented it on the state level years before the ACA was even a thing?

Look, conservatives. I don’t always agree with you.

The only thing I ask is that you make sense. I am genuinely confused.

triple on July 18, 2012 at 7:49 AM

Here’s a happy statistic for the day. If you have a disability, you won’t need to get insurance from an exchange, I suppose.

http://www.weeklystandard.com/blogs/americans-joining-disability-outpaces-americans-finding-jobs_648660.html

Philly on July 18, 2012 at 7:52 AM

If I recall correctly there are a couple of key things that must happen before it can come up and be repealed via the 51 vote option. Which is the only way we can repeal it. That means it probably won’t occur in January. If it hasn’t occurred by the end of May then congress has a intention of repealing it.

chemman on July 17, 2012 at 9:58 PM

i beleive to use rec, the bill must include the budget (which must be passed by law, ahem) and have changes to the deficit. if those changes effect the deficit negatively then they must sunset in 10 years (the 2001 and 2003 tax rate changes are an example of THAT, and why we are now again at the fiscal “cliff”). if they effect deficit postively (reduce) a budget bill including an obamacare repeal would (after the doc fix and class act shams have been exposed) there would be no sunset.

i assume they are working on an omnibus tax bill now. i hope anyway. loosely based on simpson-bowles and the ryan budget, merging the tax provisions of each. and i would guess it comes in may linked together with this bud rec/obamacare repeal. i am an optimist. and this tax bill will be bigger at least as big as 86 bill that got rid of sales tax, credit card interest, and created the wonderful passive loss rules.

t8stlikchkn on July 18, 2012 at 8:15 AM

Bush’s fault.

Mr. Arrogant on July 18, 2012 at 8:19 AM

whoever heard of “reconciliation” outside of the Beltway before Scott Brown won a US Senate seat?

Really, Ed? Are you condescending to your readers that weren’t politically awake before Barack Obama, or have you really paid attention that little before him yourself?

How can you possibly have been politically involved over the last few decades and not have ever heard of reconciliation before Scott Brown? I mean, that’s really something that questions the depth of your full understanding of the governmental proceedings you report on.

It’s been used 23 times since 1980, and 17 of those were by Republicans.

Boomer_Sooner on July 18, 2012 at 8:22 AM

There is, however, one word that will work to end ObamaCare: repeal.  It’s time to stop looking for courtroom Deus ex machina arguments and start working on the political solution

I am voting for Romney, but….

Just voting “R” isn’t going to magically fix this.

Both parties are out of control. Republicans happen to have gone a little less wild than Dems, but they have still failed our country. It is going to take a Constitutional Amendment or the R-word to turn this thing around. Either that, or the whole fustercluck just goes bankrupt one day.

bitsy on July 18, 2012 at 8:37 AM

Hey! We’ve got two ads automatically starting up when we come here.

Yes and that market whatchacallit ad doesn’t always shut off. It wouldn’t be soo annoying if not for that, and that the horrib;e audio quality makes it sound like they taped it in that anchorwoman’s kitchen.

curved space on July 18, 2012 at 8:42 AM

Repeal.

Then keep on repealing this horrific monster.

Rollback.

Once we understand that the ‘entitlements’ are mere laws and not part of the social contract or the Constitution, once one dies the rest start to look ripe for the rolling.

Yes it can be done humanely, to protect those suckers citizens that bought into such schemes and didn’t plan on living as long as they have… but that doesn’t mean they are FOREVER. Governments are instituted amongst men and we can change or abolish them when they no longer serve the public good.

Repeal.

Don’t ‘replace’ as the government should have as little to do in health care as possible.

Which means keep on Repealing government.

Roll it back.

Rollback.

ajacksonian on July 18, 2012 at 9:27 AM

“While the statutory language is quite clear that a federal exchange is different then a state exchange, the federal exchange works like a state exchange for taxing purposes and really is a state exchange, while for regulatory purposes it is a federal exchange…where was I going here? Wait, haven’t we already passed that same tree twice before?” – Brave Sir Roberts confusing himself while writing the next majority opinion concerning ObamaTax

NotCoach on July 18, 2012 at 9:58 AM

Even if they are, though, the technicality is so minor, and the intent clear enough, that the court that created a non-tax tax (or a taxalicious non-tax, depending on your preference) will hardly bother to toss out the entire mechanism over a single word.

Toss the whole thing? No. But SCOTUS would block the subsidies for Federal exchanges. By Roberts own hands off logic he should uphold the law as written and say it is up to Congress to correct the mistake.

Rocks on July 18, 2012 at 10:54 AM

Roberts didn’t say all parts of Obamacare are above challenge, did he? Certainly a bill so huge will be in court dozens of times. I’d hate to think 1 Supreme Court ruling will be used as a blanket to cover all cases involving any aspect of that huge, hurried, horrid piece of legislation.

hawksruleva on July 18, 2012 at 12:28 PM

John Roberts’ face has become one of the few I cannot stand to see.
At least we don’t see him on TV, or on adds, or his wife on ads, all over the internet, all the time.

GaltBlvnAtty on July 17, 2012 at 9:10 PM

How about him and Sotomayor on the Kiss-Cam?

Nutstuyu on July 18, 2012 at 2:55 PM

Sigh. There was a time when “plain meaning of the statutory language” was considered the first rule of statutory construction. I guess that time ended in 2008.

tkmcp on July 18, 2012 at 3:11 PM