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