Obamacare: Still Not Dead Yet

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Obamacare is dead!

"I'm not dead yet!"

Three court rulings have come down this week in three separate legal challenges to various aspects of the Affordable Care Act, aka Obamacare. One, the case of Halbig v. Burwell, is being trumpeted loudly across the media as a death blow to Obamacare, especially by those sites with a rightward bent and/or those whose business model involves screaming headlines as click-bait.

A second ruling from the Fourth Circuit on King v. Burwell comes to a completely opposite conclusion than Halbig, so it's likely you won't hear as much about it. And a third ruling on the case of Johnson v. US Office of Personnel Management (OPM) is a clear rebuke to legislators' attempts to weaken the executive branch via litigation.

First, the bad news. Then, the good news. And then, the news that has John Boehner weeping into his scotch.

Halbig v. Burwell

A three-judge panel of the DC Appeals Court issued a split 2-1 ruling in Halbig v. Burwell in favor of the plaintiffs, who argued that language in the Affordable Care Act shows that the federal subsidies and mandates of Obamacare apply only to health insurance exchanges operated by the states, and not to those operated by the Federal government in states that declined to establish exchanges of their own.

The effect of this ruling would be to take away subsidies that make health insurance affordable to the 4.7 million Americans covered by the Federal exchange otherwise qualifying for financial assistance.

The crux of the issue is ambiguity within the language of the Affordable Care Act. The ACA describes the state health insurance exchanges in a separate section of the law than the federal exchange. But the section of the ACA describing federal subsidies to income-qualifying Americans refers only to the subsection about the state exchanges, and neglects to also cite the subsection about the federal exchange.

In Halbig v. Burwell, the two judges ruling in favor of the plaintiffs argue that a literal reading of the ACA leads only to the conclusion that subsidies were not intended to be granted to participants in the federal exchange, no matter the legislative intent or history of the law's drafting.

The Obama administration has already indicated that it is calling for an en banc ruling by the entire DC Court, which is no longer understaffed thanks to Harry Reid's move to exempt judicial appointments from the filibuster. The partisan split of this court now stands 7-4 in favor of judges appointed by Democratic presidents, so court watchers doubt the initial ruling will survive.

King v. Burwell

Meanwhile, in the Fourth District, a unanimous ruling by the full court lets stand a lower court ruling that came to the opposite conclusion. In King v. Burwell, the Fourth Circuit agreed that the statutory language of the ACA is ambiguous. However, looking at the broader picture of legislative intent of the law -- to make health insurance affordable to all Americans -- they ruled that HHS, IRS, and other federal agencies are within their rights to promulgate regulations that apply the subsidies and mandates of Obamacare equally, regardless of which entity manages the exchange.

In his concurring opinion, Judge Andre Davis scorches the earth on which the plaintiffs stood, to wit:

What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

Johnson v. OPM

And in Wisconsin, a federal judge has summarily dismissed a suit filed by Republican Senator Ron Johnson which attacked the method by which the Office of Personnel Management subsidizes the health insurance premiums of Congressional staffers, who were swept into the exchanges by a Republican maneuver they hoped at the time would derail passage of the ACA

The most hilarious moment in Senator Johnson's court filings was his explanation of how he and/or his staffer were damaged by getting financial assistance for health insurance, just as any federal employee would receive as a benefit. He claimed that if constituents understood that he receives benefits from Obamacare, it could hurt his re-election prospects.

In his ruling on Johnson v. OPM, Judge William Griesbach found that Johnson and his aide lack standing to challenge this federal policy.

As Jennifer Haberkorn writes in Politico,

Judge William C. Griesbach, a George W. Bush appointee, said that Article III of the Constitution prevents Johnson’s lawsuit from moving forward and suggests that any remedy must come from Congress. He said that the Wisconsin Republican cannot prove he is injured by the policy, which moved lawmakers and some of their staff from the usual federal employee health benefit plan and into the new Obamacare exchanges.

This ruling points to the central problem with Speaker Boehner's proposed lawsuit against the Obama administration over delaying some mandates in the ACA. Congress has the power to pass legislation that restricts the executive branch's authority in this matter, so courts are generally not interested in being dragged into the fight.

Conclusion

Here's where we stand as of today: The applicability of subsidies to exchanges operated by the federal government has been unanimously upheld by one circuit court, and overturned by a subset of another. If the full DC court concurs with the Halbig ruling, which seems unlikely, it would create an opportunity for the Supreme Court to weigh in on the competing decisions.

Meanwhile, a district court judge has summarily dismissed Senator Johnson's dubious claim of standing to sue over the treatment of Congressional employees under the ACA, and reaffirmed that the courts are not the place to resolve partisan differences over the effects of legislation.

All in all, not a bad news day for Obamacare, no matter what some may say.