Why Obamacare May Not Survive Another Court Challenge

Harvard legal scholar Laurence Tribe told the Fiscal Times there’s a “very high risk” that “a crucial aspect of Obamacare – its government subsidies provision – could fall victim to a major legal challenge being mounted by conservatives.”

“That is why, he also said, that the Supreme Court will almost certainly get ‘a second bite of the apple’ in determining the fate of President Obama’s signature health law, with uncertain consequences.”

Said Tribe: “It looks like the panel is quite divided over what to do with what might [have been] an inadvertent error in the legislation or might have been quite deliberate. But it’s very specific that only people that go onto a state exchange are eligible for the subsidies. And if that becomes the ultimate holding of the U.S. Supreme Court, where this is likely to end up – that’s going to have massive practical implications for the administrability of Obamacare.”

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  • Lorehead

    It seems likely that the Republicans, including the legislators-in-robes, are going to try to use this to get some leverage over renegotiating the law, by creating a problem that President Obama would need their help to fix.

    What might make more sense at this point is to get the states that refused to create their own exchanges to set them up, as the drafters originally intended to happen.

    • LumberJock

      How would you go about neutralizing that refusal?

      • Lorehead

        Honestly, my skills, such as they are, are not in public messaging. You’re asking the wrong person.

        But, if you want my advice anyway, I would start with the fact that millions of people have insurance through Obamacare now, the vast majority even of Republicans are happy with it, and then tell people that the Republican party is trying to take away the tax credits that make that insurance affordable, while people in other states get them. Propose the simple fix. If the Republicans say yes, great; if not, point out that they’re saying no without giving any alternative; and if they do, attack that alternative. If the Republican state parties keep demanding a total boycott of Obamacare, point out that they’re still fighting a battle they lost five years ago.

        It even has the advantage of being true.

        • Der_SauerKraut

          “Obamacare now, the vast majority even of Republicans are happy with it…”
          Surely you jest!

          • Lorehead

            74% of Republicans who get coverage through Obamacare are satisfied with it. Surveys show that Republicans only oppose “Obamacare,” not “The Affordable Care Act.”

        • LumberJock

          My point is that those who would profit most, would wish it away and will vote that way. Look at how strong the opposition to PPACA is in the south which will benefit the most and provides the greatest unified resistance. In Ky the republi-can’t pair already running in an election in 17 months are promising to shut-down Beshear’s Kynect, and are polling strongly.

          I agree with your analysis of PPACA, but the desire to ruin anything associated with the Democratic Party, Obama or social & political equity, especially at the expense of corporate security will be nullified to ensure that corporate security.

      • Lorehead

        One wrinkle is that, if it looks as if Oregon will need to create a state exchange again after the first one didn’t work and they had to throw it out, spending money on a third attempt might be a very hard sell here.

  • S1AMER

    This is the sort of screw-up that used to get a simple legislative fix, typically passed on a non-recorded voice vote. That happened with several small boo-boos (and some larger glitches) in the original Medicare and Medicaid laws, and in the Part D Medicare drug benefit back when Bush was president. Senators and Representatives who were on the losing side on the original vote typically went along with the fix because, hey, they lost and it’s time to move on and all that.

    Not now, though. Millions of people may very well be screwed out of medical coverage. Why? Because “that man” is in the White House, that’s why. And that’s more than adequate reason for anything in today’s Republican Party.

    • stansso

      Assuming that’s true, it would be because the votes existed for the changes — if there was a roll call vote.

    • MarkJ

      Don’t like it, old man? Tough. After all, your crowd was the one doing that “law of the land” shtick a couple of years ago. You just hate the fact that the ACA says what it says and it can’t be parsed or finessed. “Land of the land,” indeed.

  • EricFromTheHill

    This story has been around for at least a year now, and it seems more like an attempt to create a story than an actual story.

  • Berkshire_Boy

    By the time the three judge panel rules and the case is heard by the full district court en banc and then appealed to SCOTUS we will be nearing the end of the Obama presidency and millions more Americans will have accessed healthcare through the exchanges during open enrollment and life altering circumstances. Most of the states relying on the federal exchange are red states that resisted setting up their own. So, if the courts rule against the admin on the subsidies through the federal exchange, the people most immediately harmed will be millions of voters and their families in red states. Good luck with that GOP.

    • Wunderkid

      This is my thought exactly. Once the ACA was implemented and people cam to rely on it in literal matters of life and death, throwing up obstacles to its effective working simply becomes material for arguments in favor of a public option, or better yet, Medicare for all.

    • LumberJock

      Red-state voters historically vote contrary to self-interest financially. They vote to put god in the schools [unconstitutional], to put the commandments on public walls & in public spaces [unconstitutional], resegregate schools and public accomodations [unconstitutional], change the constitution by executive order of a christian president [unconstitutional] and ban liberals [unconstitutional].
      Red-state voters might go for this program if the resident in the white house was as white as they are.

    • DFR

      I’m afraid you don’t get it. Most Repubs are so filled with irrational, unreasonable hate for Obama, they just want to burn it all down. The could not care less who they hurt as collateral damage.
      Don’t underestimate their level of hate. With these political terrorists, reason died a long time ago.

  • Gregory Williams

    The democrats should play up the fact that the only death panels are the extremist conservative DEATH TO AMERICANS panels called the GOP and Tea Party.

    Each of the federal exchanges is state specific and meets the definition of being a state exchange since none of them has authority beyond the individual state that they cover – a federal exchange in any individual state is in fact that states exchange and the subsidies are rightfully available to the people of that state as intended by the law.

    • creative_dude

      Complaining about death panels is so last year. This year POLITICO says that they are a good thing and that political credit will help the Democrats that step up and defend the panels.

  • Arch

    This challenge is a very serious one because the law states that only state exchanges would be eligible for tax credits and subsidies. This was no oversight. The motivation was that in 3 years, the entire cost of ObamaCare would be pushed by the Feds into the states’ medicare/medicaid accounts. Failure to open a state exchange would be punished.

    Now, only 14 states and DC have state exchanges, while 36 do not. Absent the employer and individual mandates, voluntary enrollment would certainly attract the very ill, but not the healthy. Without tax credits, the premiums would be extremely expensive. Loss of healthy, young customers would cause insurers to adjust rates upward – the death spiral.

  • Tim Meade

    Ah those nasty republicans trying to make people act like adults and take responsbility for their own helath care and children and college tuition and food etc instead of relying on a handout from Uncle Sugar. when did America stop being the land of rugged individualism and become the land of whiners in need of a nanny? ACA dead today, tomorrow the demise of Social Security! We can only hope. Grow up people and take resonsibility for your own lives!

    • Marga Watrous

      So,Tim, you have a huge savings account that will cover all of your expenses when you get old and can’t work anymore? Good for you. But one bad accident could put you there quicker. It’s funny to watch people opposed to publicly funded programs (and all of us that work are the public funding the programs) until they can’t eat. I know a few like that. They scream about government programs, taking personal responsibility, and keeping it away from moochers all the while getting disability along with food stamps and Medicaid. But if healthcare, food, and college tuition wasn’t priced so artificially high, while wages are kept low, maybe no one would need help.

  • Julianne Chladny

    This type of Political set-back is what is costing the tax payers an infuriating expense. Everyone next up on a medical wait-list could be in recovery by now. SO much money pays for that bureaucracy. Stop letting wealthy people form your opinions for you, that is financial abuse, some people would uphold these Roles for Free I hope you realize.
    Here’s a new radical idea… Perhaps the opposition party should not be on the tax-payer’s pay role. State your Political Agenda or keep your mouth shut, politically speaking of course.

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