Saturday, July 12, 2014
Judges Who Care
We're all waiting for the DC Appeals Court to rule on a question of statutory interpretation of a clear line in the ACA (aka Obamacare). The decision is coming soon.
Here's the line in the ACA (subsection 1401):
"The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—
That last is pretty specific and plain on its face. And for the record the federal exchanges that are set up when a state elects not to set up an exchange are governed by 1321, a wholly different section.
Now lest you think this is just sloppy writing by the drafters of the bill, know that this exact formulation about state exchanges is repeated in multiple other sections in the act. Certainly the bill drafters assumed that every state would rush to set up an exchange (but they couldn't directly force the states to do so as that would be unconstitutional). They assumed wrong. More than 2/3rds of the states did not set up exchanges. Oops.
Although the federal government cannot order the states to do things, they can dangle carrots before the governors which entice the states to bend to the federal will. (A classic example is the federal desire to raise the drinking age back up to 21 and the carrot the feds used to make every state toe the line was highway funds-- 21 will get you several hundred million, 18 will get you nothing. All 50 states have a drinking age of 21). So the ACA drafters tried the carrot method, ineffectively, with the state exchanges. Build them and health insurance "premium assistance" will come, don't build an exchange and your citizens get no help.
So, someone is suing the government (former Secretary Sebelius to be exact) to get a statutory interpretation by a court that 1401 actually means what it says, that is, a ruling that premium assistance is not available in 30 some states, which only have exchanges established by the federal government under 1321. Such a ruling will make full implementation of this train wreck legislation very, very difficult. It may well implode rapidly and have to be repealed in full.
I wish! As with the Worker's Comp statute above, the DC Court judges will have to care about doing their job, will have to care about following the clear rules of statutory interpretation. They could well punt on doing their jobs and say close enough--they didn't mean to limit assistance to just the state exchanges. Courts do that lazy "close enough" fake interpretation (actual rewrite) nearly every work day here in America.
But the good news is that any ruling will be appealed by the losers and that will give the Supreme Court a second chance to drive a stake through the heart of this statist abomination/statutory scheme. With all the serious problems with the ACA and the lawless way it has been "rewritten" by the President, becoming clearer and worse, respectively, with the passage of time, Chief Justice Roberts may well choose this time to wield the stake.
A man can dream, can't he?
UPDATE: The dream comes through in the US Court of Appeals (DC Circuit). Two out of three judges actually do care.