A key senator on the Judiciary Committee says the real significance of the King v. Burwell lawsuit before the U.S. Supreme Court that challenges the legality of hundreds of millions of dollars in federal tax subsidies to consumers under Obamacare is whether or not the president must follow the nation’s laws – like the rest of the nation.
“If I’m guilty of anything … it’s expecting the president would follow the law,” Sen. Orrin Hatch, R-Utah, said in remarks prepared for delivery at the Heritage Foundation on Monday.
“And that’s what’s ultimately at stake in King: Is the president bound to the law, or can he rewrite or simply ignore provisions he doesn’t like in order to further his political agenda?”
Hatch said advocates of the president’s position “would have us believe that statutes are infinitely malleable – up can mean down, right can mean left, established by the state can mean not established by the state.”
“What matters to them is advancing some vague notion of statutory purpose – regardless of what the statute actually says – that coheres with the president’s left-wing agenda.”
The case, which is to be heard by the Supreme Court March 4, focuses on the federal subsidies to millions of Americans to pay for health-insurance coverage.
The plain wording of the Obamacare is that the subsidies are available for those who obtain their coverage through exchanges “established” by the states. The stipulation was an incentive for states to set up the exchanges.
However, three dozen states simply refused, so the White House regulations were “interpreted” to mean that those who get coverage from a federally established exchange also could get the subsidies.
A brief from the Cato Institute in the King v. Burwell case charges the subsidies were expanded for purely political reasons.
See the “tsunami” that is changing America irrecovably, in Whistleblower magazine’s issue titled “Killing Obamacare: How to dismantle, destroy, repeal and replace the most destructive law in a generation.”
In the Volokh Conspiracy blog, David Bernstein explained that the Supreme Court “is set to decide whether Obamacare subsidies for policies procured from exchanges are only available when the exchange was ‘established by a state,’ as the plain text of the law says.”
Deferring to the administration’s interpretation of the law would be “foolhardy,” he wrote.
“No Obama political appointee is going to write regulations that say, in essence, ‘Oops, we (at best) forgot to account for the possibility that most states wouldn’t create exchanges, so let’s throw in the towel on the whole Obamacare thing by denying subsidies to residents of states that have federal exchanges,'” he wrote.
Hatch said, “Those of us on the other side … insist that text matters, words matter. What the statute says is what matters, because at the end of the day, the words in our statutes and in our Constitution are what bind our leaders, and what prevent them from doing whatever they want.
“Fidelity to text is the foundation of the rule of law,” he said.
He said if the Supreme Court does adopt the plain language of the law, then Congress needs to be prepared to step in and help those who have been getting subsidies improperly.
“Obamacare has already inflicted a lot of damage on our nation’s health care system, harming patients, consumers and employers alike. I don’t think we can stand by and simply let the shortcomings of the law harm millions more,” he said.
“We need to help the people who will be hurt by losing their subsidies because of Obamacare’s broken promises. That means providing a reasonable and responsible transition for those who may lose their subsidies while Congress works to repeal and replace Obamacare once and for all,” said Hatch.
“And that’s what we have to do: Repeal and replace Obamacare. That’s the only permanent solution to this and a host of other problems,” he said.
He said the Obama administration, rather than following the “rule of law,” has “engaged in a sustained assault on the rule of law.”
“His offenses run the gamut from releasing Guantanamo detainees without first notifying Congress, as the law requires; to claiming that congressional inaction somehow clothes him with legislative-like authority to suspend immigration laws; to arrogating to himself the power to determine when Congress is in session.”
He said the intent of the language of the law is clear.
“The restriction of subsidies to state-established exchanges was thus a key element of Obamacare’s entire cooperative federalism scheme. Without this restriction, the end result would have been a federally run health care market, a result unacceptable to several key Obamacare supporters, including Sen. Ben Nelson of Nebraska, whose vote was essential to passage,” he said.
Amendments to the law itself, to make it comply, are simply out of the question for Obama. The U.S. House has had a majority of Republicans for several years, and Republicans now control the Senate.
There have been dozens of votes already in the House to simply repeal Obamacare. And if a legislative update to the law were proposed, some of its features undoubtedly would be unacceptable to Obama.
Said Hatch, “We need to take the federal government out of the equation and put individuals back in charge of their health care decisions.”
The case is one of several that could create a massive roadblock for Obamacare. At the district court level, Judge Ronald White in Muskogee, Oklahoma, ruled that subsidies, in the form of tax credits, apply only to consumers in the 14 states that have set up insurance marketplaces and not to individuals who buy insurance on the federal marketplace, as in Oklahoma.
Another pending claim against Obamacare alleges the law violates the Fourth, Fifth and Ninth Amendment provisions on privacy.
The complaint also cites Articles I, II and III of the Constitution regarding the separation of powers and focuses on two issues: the requirement to buy insurance and the control that will be vested in the Individual Price Advisory Board, a new creation of the federal law that is unanswerable to Congress and unaccountable to the federal courts.
WND also reported on yet another lawsuit pending in federal court that charges Obama unilaterally altered the law without approval from Congress, which means it’s no longer legal.
In its first trip to the Supreme Court, Obamacare was ruled constitutional but only after the justices re-interpreted the “penalties” required by the law as a “tax,” a stance the Obama administration originally argued against.
In its second trip, the justices ruled that a “closely held” for-profit business can opt out of Obamacare’s universal contraception requirement based on religious objections.