Withdrawal from Occupied Obamacare (THIS IS A TPYO, Not Obamacare Legislative Language)

Hank  Adler
|
Posted: Aug 08, 2014 12:01 AM

The language of the Obamacare legislation is unambiguous:

the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 [1] of the Patient Protection and Affordable Care Act

This language clearly and concisely provides that the Obama administration did not and does not have the right to provide subsidies to individuals enrolled in states that did not organize state exchanges (or prospectively states that eliminate their state exchanges). While the Obama administration has played fast and loose with effective dates, insurance requirements and the like, both the language and the history of this language should hardly be in dispute.

Note that while the Courts may currently be split on whether the Obama Administration can continue to pay these subsidies, Joel W. Hay argues that it is possible that all recipients of such subsidies may be required to repay their subsidies to the Federal government. So, while the Obama Administration can continue to pay, the President may be putting millions of families across the country at risk for repayments they will not possibly be able to afford. This possibility has not been discussed in the press. Is the Obama Administration or any of the insurance companies alerting anyone to this possibility?

There are two bona-fide witnesses that the language was no typo. Further, Democrats did not take the opportunity to try to change or "fix" the legislative language through a technical corrections act.

The first bona-fide witness was the then Leader of The Pack, Nancy Pelosi, who famously said that everyone would have to read the bill to know what was in it. This is the manner in which Ms. Pelosi chose to legislate. Shame on her, shame on the Democrats who were one hundred percent of the votes in favor of Obamacare for what they now portray as shoddy legislation (although most believe this was the intent of the Democratic Party's outside expert.) The legislation is what the legislation says, no more and no less.

The language is clear and specific. The Internal Revenue Service does not have the authority to provide tax subsidies to individuals and employers in the 36 states that opted out of creating state run health insurance exchanges. Perhaps if the legislation had been available for review, someone would have explained the risk of this explicit language to the then Speaker of the House. But, let's be clear, the language is the language and there was an affirmative decision to vote on that language before a reasonable period of time to review the legislation.

The second bona-fide witness is Jonathan Gruber, the architect of Obamacare. It has been widely reported that he publically indicated that the subsidies were only for states that formed their own exchanges. I remember reviewing this particular section of the law and concluding it was politically brilliant. I had thought that governors would be unable to resist the insurance subsidies for their constituents and virtually every state would accede to the creation of its own separate health insurance exchanges. Obviously, I was wrong and the thirty-six governors showed more character than I could have imagined. These governors' integrity is a wonderful thing.

Now The Empire (Courts) is striking back. The President, through his HHS, has lost every round with respect to the ability for his Obamacare to trump religious freedom. The Supreme Court will not be able to condone the insurance subsidy payments for the thirty-six states not operating state exchanges. This means that the four or so million Americans in those states likely need to repay subsidies already received and subsidies received before any Court case that determines such payments were incorrect. This is not a result I suspect many Americans want to see. Obamacare will become a regional program, again not an answer most wish to see.

But what now?

Republicans now have some serious arrows in their quiver. That quiver will be noticeably larger after the fall elections.

The issue for citizens is that Obamacare needs to be incredibly and dramatically reigned in or eliminated. The Democratic concern has to be that their "key legislative accomplishment" could be decimated by the Courts and this could, in reality, cause a significant part of their base to lose faith.

There may be a bi-partisan opportunity here. Could Republicans and the President live with

(a) elimination of all penalties under Obamacare making the entire program voluntary,

(b) a restoration of the ability of the consumer, whether that consumer be an individual or a business, to purchase health insurance covering whatever and not covering whatever they choose, (This would restore the opportunity for citizens to return to buying policies that they believed were and are sufficient for their needs.)

(c) creating the ability of insurance companies to offer insurance policies in whatever states they choose without restriction,

(d) creating the ability of insurance companies to offer polices that augment business insurance policies that individuals believe need augmenting,

(e) abrogating most of the rules released to date by HHS and the elimination of the corresponding federal jobs

(f) prospective capping (as to individuals and in total) of any health insurance policy payments for which subsidies are being paid by the Federal government and

(g) undoing any requirement for repayment of subsidies incorrectly paid by the Federal government where the recipient did not commit fraud in the recipient's application

This is, by no means, perfect and obviously the list could be supplemented and/or amended. That being said, most authors believe that leaving the other side the opportunity not to be humiliated is the way to get a transaction completed or a war ended. With the strong possibility that the Supreme Court will rule against the Obama Administration with respect to subsidies and the risk to Democrats that other law suits challenging Obamacare will be successful, Democrats have significant reason to reduce their downside and accept a deal that most citizens would find reasonable.