The OTHER big ACA case being argued today (albeit not at the Supreme Court) concerns the statute’s alleged Disestablishment Clause

Obamacare faces two separate court challenges on Tuesday, but only one could deliver a major knockout blow to the law.

The case getting the most attention is tomorrow’s Supreme Court challenge to the health care law’s requirement for employers to provide birth control to their workers. At the same time Tuesday morning, the District of Columbia’s Circuit Court of Appeals will consider whether Obamacare allows premium subsidies to flow through federal-run health insurance exchanges. That case has been called “the greatest existential threat” to the survival of the health care law by one of Obamacare’s staunchest supporters.

The contraception case is big, but another challenge could really hurt Obamacare, Jason Millman, Wonkblog, Washington Post, yesterday

Ah. And to think that so many people think the big Obamacare cases to be argued in a federal court today are the contraceptive-mandate ones.  But not regular AB readers! That’s because y’all read this post of mine and then this one.  And you remember those posts!

But to refresh your memories about the details, I’ll quote Millman further:

The law’s opponents argue that Congress never authorized subsidies in federal-run exchanges, and they claim this was done on purpose. They say Congress wanted to incentivize states to run their own exchanges, an option that only 14 states and the District of Columbia chose in 2014.

The law’s supporters argue that the law doesn’t differentiate between federal-run and state-run exchanges, so people should be able to receive subsidies no matter who’s administering the insurance marketplaces. Further, they say the broad purpose of the law is to expand access to affordable insurance regardless of who runs the exchange.

There are four pending cases in federal court challenging the subsidies. In Tuesday’s case, Halbig v. Sebelius, a lower federal court in January upheld the IRS rule allowing subsidies in federal-run exchanges.

“The Court finds that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges,” District Court Judge Paul Friedman wrote in his decision.

Well, of course, Judge Friedman found that the plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges. Sure, he’s a Reagan appointee, but I published the first of my two posts deconstructing The Antidisestablishmentarianism Theory of Obamacare Illegality seven weeks before he issued his opinion agreeing that the ACA does not in fact have a disestablishment clause.  And since he’s undoubtedly an avid AB reader, he didn’t even have to read the government’s brief deconstructing the disestablishment-clause theory.  Well, maybe he did anyway, but he already knew that that clause in the ACA did not really disestablish the statute’s federal tax credits in 36 states.

So he wrote:

Looking only at the language of 26 U.S.C. § 36B(b)-(c), isolated from the cross-referenced text of 42 U.S.C. § 18031, 42 U.S.C. § 18041, and 42 U.S.C. § 300gg-91(d)(21), the plaintiffs’ argument may seem the more intuitive one. Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)-(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.  [Italics in original.]

Friedman’s opinion, which gets into the “Chevron deference” doctrine–don’t ask; I might tell you–illustrates just how hypocritical it would be for the Supreme Court’s conservative majority to buy these plaintiffs’ argument once this case (or one of the other three being litigated in other regional federal courts) arrives there.

Which is not to say that that is necessarily a determining impediment to their doing so; we all know better by now than to think that it.  But I do think there is a point at which this type of thing becomes so clear that it penetrates the awareness of enough people to be of fairly widespread concern.  And although the justices themselves as yet seem unconcerned, there may come a time, fairly soon, when they conclude that that unconcern is untenable as a matter of social acceptance.  Then again, I’m not sure they will care.

 

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