Obamacare Could Implode: The IRS Rule Supreme Court Case

U.S. Supreme Court Building at dusk

The U.S. Supreme Court will review the King v. Burwell challenge to a health care law rule issued by the IRS.

On Friday, November 7, the U.S. Supreme Court agreed to review a case that could cause the health care law to implode. The Court will very likely hear oral arguments on the case, referred to as King v. Burwell, this coming March and issue a ruling in June.

The potential impact on President Barack Obama’s “signature accomplishment”, which most of us commonly refer to as Obamacare, is not some fantastical desire of mine. Many opponents and proponents of the Patient Protection and Affordable Care Act (PPACA) agree that if the Supreme Court rules in favor of the plaintiffs (King), it’ll be difficult for the law to hang together1The following list of articles represent perspectives of opponents, proponents and purportedly “neutral” sources, all conveying in one form or another that the PPACA is in jeopardy because of the Supreme Court case: “Obamacare Challenge Gets High Court Review, With Crucial Tax Credits At Stake”Bloomberg, A Huffington Post piece by Terry Connelly, “A Supreme Court Case That Could Upend Obamacare” at RealClearMarkets.com, “Three Reasons A New Supreme Court Obamacare Case Matters to Pro-Lifers”The Federalist, “U.S. Supreme Court to hear Obamacare subsidies case”Yahoo Finance..

In addition, health insurance companies participating in insurance exchanges are also taking the case very seriously: even before the Supreme Court agreed to hear the case, they demanded in October that the federal Department of Health and Human Services change the terms of their contracts for operating in the exchanges. If the Supreme Court rules in favor of the plaintiffs, they will be allowed out of those contracts.

You might wonder, if this case and the Supreme Court’s agreement to hear it is so important – why have you heard so little or even nothing about it? Unfortunately, the people best positioned to inform the public apparently want Obamacare to limp along. This is not the first time important facts about the health care law have been ignored or suppressed2As far as the national politicos are concerned: “If you like your doctor, you can keep your doctor.” ‘Nuff said? Worse, we’ve had five years of campaigning against Obamacare by Republicans without real attempts to stop it, especially at the state level, where there are far more options available then people have any idea about.. Since we can’t count on the media, our elected officials, or even big-name, big-dollar “advocacy” groups to inform people, it’s up to everyone who has a proper understanding to inform others.

And what I mean by “proper understanding” is – the end game of this health care debacle has always been and continues to be “universal”, “national”, or “single-payer” health care. As in totally government-run3If you think my assertion is the stuff of conspiracies, then, sorry, you’ve got some serious catching up to do. First, the intention to pass single-payer / universal health care legislation as soon as Barack Obama was sworn into office is in the public record. For just one example, see page 10 of Rep. Dave Obey’s “Summary: American Recovery and Reinvestment” document dated January 15, 2009. As chair of the House’s Committee on Appropriations, Obey was summarizing a draft version of the Stimulus bill, which included, the following bullet point: “Training Primary Care Providers: $600 million to address shortages and prepare our country for universal healthcare by training primary healthcare providers…”. This language was included in an early draft of the Stimulus bill, but was removed when it caused a stir. Second, see the August 10, 2013 Forbes article featuring a scattered shower of honesty from Senate Majority Leader Harry Reid, entitled, “Sen. Harry Reid: Obamacare ‘Absolutely’ A Step Toward A Single-Payer System”. Then, go read the brazenly honest “How Obamacare Actually Paves the Way Toward Single Payer”, published January 5, 2014 by The New Republic. And then, finally (for now), check out the health care law’s Section 1332, which is a “state innovation waiver” available to states beginning in 2017 (see page 117 of the PPACA PDF). Vermont has already declared its intent to go single-payer, as explained in a Harvard professor’s May 2014 journal article. . You have two choices: sit here and watch the ongoing mess unfold until it collapses and is replaced by “single-payer”, or, do what you can to push for reversal before any more damage is done.

So, since the King v. Burwell case outcome has the potential to make ObamaCare implode, it affects us all.

Picture of the Nebraska State Capitol from the south

The 104th Unicameral, 1st Session, will convene January 7, 2015. Some State Senators are planning to push hard for implementing Obamacare via a Medicaid expansion

But, it’s also important to pay attention to this case if you truly want to avoid the single-payer end game, even if the Supreme Court doesn’t rule properly (again)4By “again”, of course, I’m referring to the June 2012 ruling in NFIB v. Sebelius, which upheld the health care law’s individual mandate as constitutional under Congress “taxing power”. It should be noted, only the most partisan left-wing lawyers attempt to defend Chief Justice John Roberts’ incoherent opinion in the case. For an example analysis explaining the many problems with the ruling, see “Chief Justice Roberts’ Individual Mandate: The Lawless Medicine of NFIB v. Sebelius.. Why? I’ll give you the most important reason for now: many state legislatures, including Nebraska’s, open new legislative sessions in January. They will once again take up important questions about implementing parts of Obamacare, such as the Medicaid expansion or even establishing an exchange. A pending Supreme Court decision with high impact should be all the reason legislators need to withhold any action this session and here’s why:

Many analysts have concluded that states which have established an exchange or expanded Medicaid, but especially both, stand to be in huge trouble if the Supreme Court rules in favor of the plaintiffs in King v. Burwell.

The very basic legal issues in the case:

  • A federal government agency – the IRS – attempted to fix a big problem with the health care law when it issued a rule (regulation) in May of 2012. The rule constituted a rewrite of an entire section of the law.
  • Federal agencies must implement a law as written by Congress; rules and regulations issued must have support in the text of Congress’ statute.

  • Agencies only have power to interpret Congress’ language if that text is unclear or vaguely written5Defenders of the IRS’ action have cited a legal doctrine developed by the Supreme Court, called “Chevron deference”, wherein Courts defer to government agency interpretation of Congressional statutes. But, as stated by the Court in the October 2012 ruling in City of Arlington v. FCC: “a) Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. 467 U. S., at 842–843.”.

The problem the IRS was attempting to solve with its rewrite:

  1. 36 states opted NOT to establish their own insurance exchanges

  2. The health care law only provided government subsidies for paying premiums through state-established exchanges6Section 1311 of the health care law provides for state-established exchanges, while Section 1321c requires the Secretary of Health and Human Services to create an exchange for states who don’t establish one under Section 1311. Section 1401 of the PPACA, “Premium Tax Credits and Cost-sharing Reductions”, sets out a new IRS rule – Rule 36B – the rule at the core of the case, which authorizes the subsidies, as follows: “premium assistance…through an Exchange established by the State under 1311…”. Section 1402 “makes these direct outlays available only where tax credits are available” (Adler, Cannon, page 135).

    • Most of the people eligible for subsidies simply couldn’t pay the actual, very high cost of premiums for policies offered on the exchanges (an average of $4,700 per person, per year).
    • The people who purchased subsidized policies might finally realize how ghastly expensive insurance has become because of the health care law, a fact from which they are currently shielded. They might even realize the law needs to be repealed.

    • The Congressional Budget Office (CBO) has projected that at least $17 billion in subsidies will be paid out in 2014, which, considering CBO’s history on Obamacare, is likely too low. How many of the billions have been paid out in the 36 states without state-established exchanges?

  3. The health care law only provided for the imposition of penalties on employers through state-established exchanges

    • The purchase of insurance and receipt of subsidies by individuals triggers the penalty
    • Employers who’d made hiring and hour decisions to avoid the mandate could return employees to more than 30 hours per week and remove the cap of 50 employees. More people could find jobs and/or make more money.

The actual text of ObamaCare…

  1. Heavily incentivized and clearly anticipated that each State would establish their own insurance exchanges

    • Offered a variety of generous “grants” for study, set-up and establishment if states established
    • Explicitly stated premium subsidies would be provided (via tax credits) on state-established exchanges

    • Explicitly stated employer penalties would be assessed on state-established exchanges

    • Offered nominal control over some decisions in running the exchange if states established

  2. Had a fall-back for the federal government to establish an exchange for any state which did not establish one

    • Included no language whatsoever for grants, premium subsidies or employer penalties on the federally-established exchanges
Click to read the journal article responsible for the legal challenges to the IRS rule

Read the journal article which provided the impetus for legal challenges to the IRS rule by Prof. Jonathan Adler of Case Western Reserve University School of Law and the Cato Institute’s Michael Cannon

By fiat, Barack Obama’s IRS has robbed the States of the options provided in the original language of the health care law to protect many citizens and businesses from costly mandates — but most state officials remain silent.

Although those 36 states have refused to establish exchanges and state politicians clearly have some fear of their citizens’ negativity towards the health care law, the majority of state politicians’ unwillingness to be seen as directly participating in ObamaCare is mostly limited to the visible parts the majority of the public know about7While it is technically correct that 36 states have refused to establish their own health insurance exchanges, the reality of what’s actually occurred in many states is far more complicated. In addition to highly questionable unilateral gubernatorial actions related to exchanges – including in Nebraska, some states have quietly assisted federal exchange establishment in configurations not authorized by Congress. A Washington Post article from 2011 mentions this phenomenon, but is incomplete in that it doesn’t mention Nebraska’s Dave Heineman or Michigan’s Rick Snyder, who openly stated he might use executive orders to implement parts of Obamacare..

If our state officials truly wanted to protect individuals and businesses, they would have fought tooth and nail on this IRS rule themselves, because:

If ObamaCare had been implemented as written, with premium subsidies to individuals and penalties to employers delivered only in states with state-established exchanges…

36 states would have:

  • Tens of thousands of individuals given exemptions from the individual mandate and an option to purchase a far less expensive catastrophic health insurance policyFor instance, CATO Institute’s Michael Cannon estimated more than 65,000 Nebraskans would be free of the individual mandate
  • Thousands of employers given exemptions from paying penalties8CATO’s Michael Cannon projected that 3,363 firms in Nebraska, including state government, have more than 50 employees.

In Republican-controlled states – like Nebraska – with very high opposition levels to the health care law – like Nebraska – officials could have made good on their years worth of election promises to “fight Obamacare”.

Instead, officials – including Nebraska’s – have sat silently by in all but two states, hoping none of us would ever learn that the IRS had rewritten the health care law. What else aren’t they doing? What else are they hoping we won’t find out?

Images & Graphics Sources

The images and graphics in this article were obtained from the following sources:

The U.S. Supreme Court building at dusk, public domain

Nebraska State Capitol from the south, original by “Ammodramus”, public domain

References & Notes   [ + ]

1. The following list of articles represent perspectives of opponents, proponents and purportedly “neutral” sources, all conveying in one form or another that the PPACA is in jeopardy because of the Supreme Court case: “Obamacare Challenge Gets High Court Review, With Crucial Tax Credits At Stake”Bloomberg, A Huffington Post piece by Terry Connelly, “A Supreme Court Case That Could Upend Obamacare” at RealClearMarkets.com, “Three Reasons A New Supreme Court Obamacare Case Matters to Pro-Lifers”The Federalist, “U.S. Supreme Court to hear Obamacare subsidies case”Yahoo Finance.
2. As far as the national politicos are concerned: “If you like your doctor, you can keep your doctor.” ‘Nuff said? Worse, we’ve had five years of campaigning against Obamacare by Republicans without real attempts to stop it, especially at the state level, where there are far more options available then people have any idea about.
3. If you think my assertion is the stuff of conspiracies, then, sorry, you’ve got some serious catching up to do. First, the intention to pass single-payer / universal health care legislation as soon as Barack Obama was sworn into office is in the public record. For just one example, see page 10 of Rep. Dave Obey’s “Summary: American Recovery and Reinvestment” document dated January 15, 2009. As chair of the House’s Committee on Appropriations, Obey was summarizing a draft version of the Stimulus bill, which included, the following bullet point: “Training Primary Care Providers: $600 million to address shortages and prepare our country for universal healthcare by training primary healthcare providers…”. This language was included in an early draft of the Stimulus bill, but was removed when it caused a stir. Second, see the August 10, 2013 Forbes article featuring a scattered shower of honesty from Senate Majority Leader Harry Reid, entitled, “Sen. Harry Reid: Obamacare ‘Absolutely’ A Step Toward A Single-Payer System”. Then, go read the brazenly honest “How Obamacare Actually Paves the Way Toward Single Payer”, published January 5, 2014 by The New Republic. And then, finally (for now), check out the health care law’s Section 1332, which is a “state innovation waiver” available to states beginning in 2017 (see page 117 of the PPACA PDF). Vermont has already declared its intent to go single-payer, as explained in a Harvard professor’s May 2014 journal article.
4. By “again”, of course, I’m referring to the June 2012 ruling in NFIB v. Sebelius, which upheld the health care law’s individual mandate as constitutional under Congress “taxing power”. It should be noted, only the most partisan left-wing lawyers attempt to defend Chief Justice John Roberts’ incoherent opinion in the case. For an example analysis explaining the many problems with the ruling, see “Chief Justice Roberts’ Individual Mandate: The Lawless Medicine of NFIB v. Sebelius.
5. Defenders of the IRS’ action have cited a legal doctrine developed by the Supreme Court, called “Chevron deference”, wherein Courts defer to government agency interpretation of Congressional statutes. But, as stated by the Court in the October 2012 ruling in City of Arlington v. FCC: “a) Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. 467 U. S., at 842–843.”
6. Section 1311 of the health care law provides for state-established exchanges, while Section 1321c requires the Secretary of Health and Human Services to create an exchange for states who don’t establish one under Section 1311. Section 1401 of the PPACA, “Premium Tax Credits and Cost-sharing Reductions”, sets out a new IRS rule – Rule 36B – the rule at the core of the case, which authorizes the subsidies, as follows: “premium assistance…through an Exchange established by the State under 1311…”. Section 1402 “makes these direct outlays available only where tax credits are available” (Adler, Cannon, page 135).
7. While it is technically correct that 36 states have refused to establish their own health insurance exchanges, the reality of what’s actually occurred in many states is far more complicated. In addition to highly questionable unilateral gubernatorial actions related to exchanges – including in Nebraska, some states have quietly assisted federal exchange establishment in configurations not authorized by Congress. A Washington Post article from 2011 mentions this phenomenon, but is incomplete in that it doesn’t mention Nebraska’s Dave Heineman or Michigan’s Rick Snyder, who openly stated he might use executive orders to implement parts of Obamacare.
8. CATO’s Michael Cannon projected that 3,363 firms in Nebraska, including state government, have more than 50 employees.

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