Obamacare appears headed for another rendezvous with the U.S. Supreme Court. The justices bent over backwards, well mainly Chief Justice John Roberts did, to save the Affordable Care Act two years ago. Will similar legal gymnastics be found to rescue President Barack Obama and Democrats from the clear text of the law this time?
At issue is explicit language saying that subsidies to purchase health insurance should go only to Americans who buy coverage through “an Exchange established by the State.” There’s reason to believe that the law was written this way to compel states to establish exchanges so their citizens would get subsidies.
But the law proved so unpopular that 34 states did not set up marketplaces. That forced the federal government to create exchanges. However, the law makes no provision for tax credits for Americans who buy insurance through Washington-established exchanges. That would make insurance unaffordable for millions of people, gutting the law.
Now that Obamacare has blown up in their faces, Democrats and the White Houses say the language was a “drafting error,” that Congress — actually Democrats since the law passed without a single Republican vote — intended for the subsidies to go to all Americans regardless of which exchange sold them insurance.
There are a couple of problems with this position.