To this, other conservatives have replied that because subsidies are the mechanism through which the employer and individual mandates operate, including the imposition of penalties, a ruling for the plaintiffs would amount to a massive tax cut. What’s more, Obamacare’s overregulated exchanges have dramatically driven up the cost of coverage on the individual market, increasing premiums by 100 percent or more in some states. Without federal subsidies propping up the exchanges, states would be free to implement market-based health insurance reforms that would drive costs down.
All of that is wonderful, and we should have a robust debate about it. But what happens to the subsidies should not be the court’s concern. The only question that matters in King is whether the administration used the IRS to rewrite a law Congress passed.
This latest legal challenge to the federal health-care law stands, as the others have, as a warning: the modern administrative state poses a grave threat to the rule of law. Woodrow Wilson, the progressive most closely associated with the administrative state, called the field of administration “a field of business. It is removed from the hurry and strife of politics; it at most points stands apart even from the debatable ground of constitutional study.”
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