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Tuesday, July 22, 2014

A do over for Justice Roberts? Very likely

Chief Justice John Roberts' chances for a do over on Obamacare got a quantum boost today as a 3 judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled 2 to 1 against the Obama Administration. The administration is certain to ask the full Court of Appeals to reverse the panel's decision, which for now does not have the rule of law. If the full court affirms the panel's decision it's back to the Supreme Court again. Today's ruling endorsed the interpretation of the Affordable Care Act that argues that the subsidies are illegal because ACA does not explicitly empower a federal exchange to offer subsidized coverage, as it does in the case of state-created exchanges.
In his dissent, Judge Harry Edwards called the case a "not-so-veiled attempt to gut" Obamacare. Really? Damn perceptive!
If upheld, the ruling could lead many, if not most of those subsidized customers to abandon their health plans sold on because they no longer would find them affordable without the often-lucrative tax credits. And if that coverage then is not affordable for them as defined by the Obamacare law, those people will no longer be bound by the law's mandate to have health insurance by this year or pay a fine next year.
The consequences of today's ruling do not stop with the individual subsidies. They pretty much deep six Obamacare completely as they would nullify the employer mandate in the 36 states that did not set up health care exchanges. That is because starting next year when all employers with 50 or more full-time workers must offer affordable insurance to their employees or face fines the fines only kick after an employer's workers buy subsidized insurance on a state exchange not on In short, no state exchange; no fine.
Many in the media make much of the fact that Democratic appointed judges outnumber Republican appointed judges in the DC circuit of appeals. Supposedly all federal judges place allegiance to their respective parties above their oath to uphold the constitution and the law. Some judges probably do but even should the Obama Administration prevail in the full court that still leaves the plaintiff the option of appealing to the Supreme Court. Considering the court's new found antipathy to Obama's overreach it is likely the court would hear the appeal. Today's opinion merely confirms that the letter of the law prevails over HHS rule making when they conflict. 

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