“Outlawing the subsidies would…ignore what Congress intended when it approved the Affordable Care Act.”, Tampa Bay Times, 3/2/15 Editorial
This week, The U.S. Supreme Court will hear arguments in King vs. Burwell to determine whether the Obama administration is breaking the law in implementing the Affordable Care Act (“Obamacare”). At issue is whether the Federal government can provide subsidies to citizens of states where an “Exchange” is not set up by the state itself. 35 states have found it too costly and unmanageable to devote their state government funds and resources to set up the “Exchange”. The “Exchange” is a process of ensuring insurance policies meet Federal standards and are qualified for Federal subsidies (checks to insurance companies); and then offering those policies at an online marketplace run by the state government itself. The most famous exchange currently is the Federal Exchange (Healthcare.gov) with its storied crashes, data breaches and inaccurate calculation of subsidy value that then gets mailed by the IRS to 800,000 Americans. It is no wonder – given the complexity of the task, the implications for lawsuits by citizens against the state after data breaches and the cost to the state – that 35 states have refused to set up State-run exchanges. Instead, they have left it up to the Federal government to do so – creating the legal conflict.
The law is clear when it states that subsidies can only be paid “through an Exchange established by the State”. The subsidies are the life-blood of Obamacare (see more detail by Michael Cannon). They are the free ride to Americans making as much as $87,000 per year (family of four). These subsidies are really US government checks written directly to the insurance company to purchase health insurance for those who have “qualified” health insurance that is purchased through an exchange. The subsidies are the magic government ingredient that creates the illusion of “affordability” of health insurance. The fact is that health insurance premiums have continued to rise and have not become more affordable. They simply have been paid for by someone else through the use of subsidies. The payers in this case are the American taxpayers, those who are healthier (by paying more for health insurance to subsidize the sicker) and our children who will have to pay back or suffer the consequences of enormous debt in the future.
The subsidies are politically critical to supporters of Obamacare and these supporters will stop at nothing to support them. They will even resort to lies. This is the case of the Tampa Bay Times today in claiming that “Outlawing the subsidies would gut health care reform, leave millions of Americans without coverage — and ignore what Congress intended when it approved the Affordable Care Act.” That is a simple lie and the Sunbeam Times rates its “Under a Rock”. The lie is obvious when relying on the chief architect of Obamacare (Jonathan Gruber), Court rulings in favor (King) and against (Halbig) the subsidies, the Congressional record, and of course the plain language of the law itself!
Proving the Times is lying about Congressional intent is a simple matter and relies in part on the accidental truth-teller and Obamacare Architect Jonathan Gruber – himself a person who admits to the use of lies and deception to pass Obamacare in the first place. Mr. Gruber became famous for pointing out that the lack of transparency was a great asset in passing Obamacare. He also pointed out that he and other Obamacare supporters relied on the “stupidity of the American voter” to ensure passage. He admitted in a January 18, 2012 presentation that the availability of subsidies to the states is designed as a coercive political tool to get Obamacare implemented across the nation at the state level. As described by Michael Cannon here, Gruber states:
“Questioner: You mentioned the health-information Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.
Gruber: Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.
Mr. Gruber backtracked later to cover his tracks, but he can’t lie to cover his tracks now after clearly stating on the record that the states are the places to get the subsidies – especially after he admits that he is willing to lie to achieve his goals. (Mr. Gruber is just now being accused of lying to the state of Vermont on the number of hours billed for health care consulting too!) However he had said essentially the same thing to support he concept of States as the sole source of subsidies on January 9, 2012.
But there is more that points out the lie of the Tampa Bay Times in claiming Congress had intended to provide subsidies through the Federal exchanges. First of all, nowhere in the Affordable care act does the law state that subsidies can be paid for through the Federal Exchanges. The law is clear that subsidies are provided only “through an Exchange established by the State”. Secondly, the Congressional record supports the idea that States would set up Exchanges as described in the D.C. Court ruling on Halbig that found that the subsidies through Federal Exchanges were indeed unlawful (see pages 30-24 for a discussion on “intent”). In that ruling, they point out that in 2009 the Congressional Budget office calculated Obamacare costs on the assumption that every state would set up an exchange requiring Subsidies (every state, not the Federal government). The D.C. court overturning the Federal Subsidies (Halbig case) further states:
“For the court to depart from the ACA’s plain meaning, which favors appellants, “there must be evidence that Congress meant something other than what it literally said,” from which the court can conclude that applying the statute literally would be “‘demonstrably at odds with the intentions of [the ACA’s] drafters.’” Engine Mfrs. Ass’n, 88 F.3d at 1088 (quoting Ron Pair Enters., 489 U.S. at 242) (emphases added). As Chief Justice Marshall wrote, “it is incumbent on those who oppose” a statute’s plain meaning “to shew an intent varying from that which the words import.” United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805). Nothing the government or its amici cite demonstrates what that precise intent was. And “[i]n the absence of such evidence, the court cannot ignore the text by assuming that if the statute seems odd to us, i.e., the statute is not as we would have predicted beforehand that Congress would write it, it could be the product only of oversight, imprecision, or drafting error.” Engine Mfrs. Ass’n, 88 F.3d at 1088-89; see also id. at 1091 (“With such a meager record of what happened in conference, the court is unable to reconstruct the legislative compromises that were made. Even if the final product might strike us as unexpected . . . the court could not make the leap from such an impression to the certainty that such a result was unintentional.”).”
Of course, the reason this is still an issue is the fact that the Fourth District Federal Court ruled in favor of the use of subsidies for those purchasing insurance through the Federal exchanges. However, even the Fourth District Court stated in their ruling on King :“The Act’s legislative history is also not particularly illuminating on the issue of tax credits.” They also stated: “As explained, we cannot discern whether Congress intended one way or another to make the tax credits available on HHS-facilitated Exchanges.”. The Fourth court instead supported the use of subsidies supported by Federal Exchanges based on the: “…the IRS Rule’s advancement of the broad policy goals of the Act.” In other words judges of the Fourth circuit just liked the idea and the “broad policy goals” of Obamacare. It should also be noted that citizens could still get Obamacare insurance through Federal exchanges – they would just do it without the subsidies. Of course Obamacare supporters know that few would buy Obamacare without a subsidy given the enormous and artificially elevated premiums created by the government as well as the loss of the patients’ doctors, and the creation of rationing protocols by the Obamacare insurance policies.
Thus it is clear that the Tampa Bay Times is lying when it asserts that the Congress INTENDED to allow subsidies to be supplied to citizens when they purchase mandated Obamacare policies through a Federal Exchange. The Sun Beam Times therefore rates the Times claim on Congressional intent and Obamacare subsidies as “Under a Rock”.