Obamacare: More flaws now that we’re finding out what’s in it

Sen Doug Whitsett

by Sen. Doug Whitsett

The Patient Protection and Affordable Care Act was debated throughout much of 2009 and eventually enacted on a party line vote of Congress. The president signed Obamacare into law on March 23, 2010.

During the national debate leading up to that vote, former Speaker of the U.S. House of Representatives Nancy Pelosi infamously stated: But we have to pass the bill so that you can find out what is in it, away from the fog of controversy”. More than four years later, the courts are still debating what is actually in the bill.

The Obamacare mandate requires certain people to purchase health care insurance or to pay a penalty. The administration adamantly and vocally claimed that this mandate was authorized under the Commerce Clause of the US Constitution. It further argued that the Obamacare mandate is not a tax.

In July of 2012, the United States Supreme Court rejected the administration’s vigorous argument that the Obamacare mandate was justified by Congress’s power to regulate interstate commerce. However, the rest of the Court’s decision was simply inexplicable.

Chief Justice Roberts, writing for the majority of the Court, stated: “The Affordable Care Act’s requirement that certain individuals pay a penalty for not obtaining health insurance may be reasonably characterized as a tax. Because the constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness”.

This ruling allowed the implementation of the Affordable Care Act to move forward. However, one of the provisions of the Act directs states to create exchanges to regulate the sale of health insurance within the state. The Act further states that certain taxpayers may receive federal subsidies for coverage when they are enrolled in these state established exchanges. Thirty six states, now including Oregon, have opted not to establish an exchange and to regulate the sale of health insurance through the exchange established by the federal government.

Nowhere does the Affordable Care Act authorize tax subsidies for individuals who secure health insurance through the federally created exchange. In their recent Halbig v. Burwell decision, the US Circuit Court of Appeals for the District of Columbia upheld the written wording of the Act and ruled that federal tax subsidies cannot be issued to people who have obtained their health insurance through the federal exchange.

Under the Circuit Court ruling, millions of people in 36 states who have accessed health insurance through the federal exchange are not eligible for the billions of dollars in tax subsidies that they may have already received. Because Oregon has decided to shift from the failed state sponsored Cover Oregon to the federal exchange, those who have enrolled in Cover Oregon sponsored health insurance may also lose their eligibility for federal tax subsidies when they transition to the federal exchange.

The DC Court of Appeals decided that the wording of the Affordable Care Act is unambiguous and clearly prohibits the Obama administration from issuing subsidies outside of an exchange established by the state. The Court stated that the Affordable Care Act “does not authorize the IRS to provide tax credits for insurance purchases on federal Exchanges” and “the government offers no textual basis…for concluding that a federally established exchange is, in fact or legal fiction, established by a state”.

Moreover, Congressional investigation has determined that both the Treasury Department and the Internal Revenue Service were well aware that they were not authorized to dispense subsidies to states where exchanges were established by the federal government. Nevertheless, the Obama administration authorized the IRS to create administrative rules that provided subsidies for people who accessed health insurance through the federal exchange.

It now appears that as many as half the approximately eight million people who have accessed health insurance through the federal exchange have been unlawfully subsidized by the policies promulgated by the Obama administration. Under the DC Court ruling, Oregonians will not be eligible for federal tax subsidies once they have transitioned to the federal exchange.

In a separate decision rendered on Tuesday, the Fourth Circuit Court of Appeals decided that the IRS rule allowing subsidies through a federal exchange is a permissible interpretation of the “ambiguous” wording of the Affordable Care Act. It appears that they determined that, in the context of the Act, there is no difference between a state and the federal government.

It is likely that the applicability of the federal subsidies will be ultimately decided by the US Supreme Court. In the meantime, the American people and our national economy will continue to be held hostage to the interpretation of the meaning of this egregious, partisan federal law.

Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls

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Posted by at 05:00 | Posted in Cover Oregon, Health Care Reform, Obamacare, President Obama | 50 Comments |Email This Post Email This Post |Print This Post Print This Post
  • guest

    OEA, ‘naivete’ instituted within US by accepting (f)laws before auditing ceded warts – and, a failure to cut the callousness out. Argh!

  • HBguy

    So, lets think of some options.

    The Republicans can agree to fix it to it’s intended result so that all US citizens, regardless of which State the live in, are treated equally.

    Or, they could seek a trade off. They could agree to fix the glitch in exchange for other changes in the ACA.(Maybe a bit crass by demanding some ransom to fix an obvious oversight, but that’s realism. And by the way, the other realism is that the ACA is not going to be repealed.)

    Or, the R’s could gloat over the glitch, not fix it, have it screw people but score political points with their base. I’d point out that Oregon is possibly one of the states where people could lose their tax credits. Is Rep. Greg Walden really prepared to vote against fixing it then face Oregonians and say it was all Obama’s fault?

    • MrBill

      I don’t think Walden would blame Obama alone. Harry Reid, Nancy Pelosi, and all the Senate and House Democrats who voted the ACA into law carry a measure of blame as well.

      Maybe the ACA should be scrapped altogether as was suggested below. That’s an option to. If it were scrapped would the Democrats be willing to work with Republicans to develop a health care policy that works better than the ACA?

      • rharris78

        Realistically, the ACA is not going to be scrapped because it would have to be done over O’bama’s veto. And also realistically, the only way there would be enough D’s to override a veto is if the Republicans had a ready to go alternative that covered as many people at less cost. And the Republicans will never ever ever come up with such an alternative.

        So the question remains. When will the Dem’s put up a bill that fixes the tax credit problem, and when they do, what will the Republicans demand in return. I suspect they have something ready to go right now in the Senate. But will wait for the USSC to rule. For maximum political impact. So the R’s would potentially be wise to pre-emptively introduce a bill in the House right now that fixes the tax credit problem, and with their own asks included, then when the Dem’s refuse to go along with the R’s additional asks, the R’s can make the dem’s lool like they are the party that is screwing people on the tax credit.

        • MrBill

          True enough, i can’t see Obama agreeing to a repeal of the ACA either. But looking ahead, the tax credit problem could be the beginning of problems with the ACA that will be surfacing. I see big problems with getting involved in trying to “fix” it. Once you help make one change, you set a precedent that’ll suck you into helping fix every problem that surfaces after that. The tar baby story from Brer Rabbit comes to mind.

  • Ballistic45

    What they need to friggin do is scrap the whole Obamacare, Take what they want from it, put it in plain English, reduce the number of pages of each Item needing to be retained, take out ALL the Crap that has nothing to do with Healthcare that was Amended to it by Democrats Then check it against the Constitution for compatibility, THEN READ THE DAMN THING THEN VOTE ON IT……

  • Shirlee

    If my health care is going to start costing me money, I am gong to get really mad. It is a right and O said it would be free to people like me who do no want to pay for it.
    Keep that promise. I am sick of all this.
    Free health care is why I voted for the guy.

    • guest

      The ACA is unconstitutional despite what SCOTUS wimped out.

      Oh Canada, Shirlee the sirens be calling you home as well as every other faux entitlement seeker.

      As for US, ccrap the beast like the Costa Concordia and let Congress lay a keel for a vessel that won’t crack open like the titanic vessel so named Obamacare.

      • guest

        Now adhere this: Scrap “Obamacare” – start over and don’t invite Hillary in to mess with the hen house. Really, at this point she’s dung enough already by *folly!
        – Omen!

        * rhyme chimes with Benghazi .

      • .

        A troll trolling a troll. Simply breathtaking.

        • guest

          Gig this air-bawl, with what you have left, expel it into the malarkey campaign berating his opponent.

    • actionsspeaklouder

      Free health care IS NOT a right – no matter what the Liar Obama said. Look up your rights – free health care isn’t listed. Obama wanted your vote, so he lied to you and used you. It’s what he does. He has lied about everything. By the way Shirlee – who do you think pays for your free health care??? Your neighbor? Your friends??? Who? The government gets its money from TAXPAYERS. If you don’t want to pay for your health care, then don’t. But, don’t expect everyone else to either. Take care of yourself – you are not my, nor anyone else’s responsibility – BE RESPONSIBLE for yourself. Grow up.

  • Contrary to what some assume, losing federal tax subsidies for ObamaCare health insurance will not raise the cost of that insurance. It will simply expose the high insurance costs that ObamaCare has forced on many Americans.

    Perhaps, once millions of people realize that the “Affordable” Care Act was anything but, they will rise up and demand that the ACA be repealed. They, we should allow people to buy low-cost insurance without all the mandates that state and federal regulators have imposed.

    • rharris78

      From the wall street journal online

      “Aetna Inc. said the tax credits played a significant role in attracting people to exchange plans. Insurance industry advocates have warned that a win for the challengers in the cases could destabilize insurance markets and lead to higher premiums for all exchange consumers.

      “It could mean the collapse of the individual insurance market in states that are affected,” if the subsidies are ultimately struck down by the high court, said Timothy Jost, a professor at Washington and Lee University School of Law who supports the health law.


      Julie Thiets, 51 years old, of Decatur, Ga., gets an insurance subsidy of more than $600 a month through the federal exchange. She said she isn’t sure if she would have signed up if there was a possibility she could lose that tax credit.

      “To me, it was the whole benefit of signing up,” said Ms. Thiets, who owns a small business that provides video tennis instruction. “It would devastate my life without it.”

      If you think that Americans who couldn’t previously get health insurance will – out of a sense of fairness to their fellow Americans who live in red states – terminate their benefits under the ACA. Or that their Senators or Congressmen will vote to take away their constituents ACA benefits, I think you are very much mistaken.

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