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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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Fuel Spill: The Republicans Are About to Admit That Obamacare Helps Consumers. (Bet On It.)

In another setback for President Obama’s health care initiative, the administration has delayed until 2015 a significant consumer protection in the law that limits how much people may have to spend on their own health care.

The limit on out-of-pocket costs, including deductibles and co-payments, was not supposed to exceed $6,350 for an individual and $12,700 for a family. But under a little-noticed ruling, federal officials have granted a one-year grace period to some insurers, allowing them to set higher limits, or no limit at all on some costs, in 2014. …

The [change] is likely to fuel continuing Republican efforts this fall to discredit the president’s health care law.

Under the policy, many group health plans will be able to maintain separate out-of-pocket limits for benefits in 2014. As a result, a consumer may be required to pay $6,350 for doctors’ services and hospital care, and an additional $6,350 for prescription drugs under a plan administered by a pharmacy benefit manager.

Some consumers may have to pay even more, as some group health plans will not be required to impose any limit on a patient’s out-of-pocket costs for drugs next year. If a drug plan does not currently have a limit on out-of-pocket costs, it will not have to impose one for 2014, federal officials said Monday.

A Limit on Consumer Costs Is Delayed in Health Care Law, Robert Pear, New York Times, today

Damn that Obama administration for forcing people whose insurance policies now have no limit on patients’ out-of-pocket costs to force them to wait another year for that consumer protection to kick in!  This is proof positive that we should repeal the statute so that that consumer protection will never kick in!

Freedom! Liberty!

Yep.  Definitely fuel for continuing Republican efforts this fall to discredit the president’s health care law. Can’t wait for the fuel spill.

The legal profession has a term for this in its Rules of Evidence: It’s called a statement against interest. The law of physics has a term for it, too: boomerang.

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UPDATE: Ezra Klein posted a good Wonkblog post yesterday explaining what happened, and why. 8/14

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