Today a pair of Republican-appointed judges on a three judge panel have voted to effectively destroy Obamacare by removing subsidies for federally-run exchanges. Ian Millhiser:
The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.
It's effectively a miswording, and for that, millions of Americans stand to lose affordable health care. Republicans are of course really happy this, which is all you really need to know.
The unsuccessful legal argument claiming that the individual mandate was unconstitutional was a major prong of the Republican attack on the law as early as 2009. Yet, even after the GOP decided that defeating Obamacare in court was their number one policy priority, after Republican officials in numerous states brought a high-profile lawsuit seeking to kill this law, and after they hired one of the best lawyers in the country to drive this litigation, no one noticed the alleged flaw in the statute that Randolph and Griffith rely upon today. The reason why is obvious. Not even the many Republican officials who filed briefs seeking to kill this law the first time around actually believed that the law was intended to deny subsidies to people who buy insurance in federal exchanges.
To get around this fact, Randolph and Griffith spin an alternative history of the Affordable Care Act’s passage. A major prong of this alternative history claims that Congress wanted to deny subsidies to people in states with federally-run exchanges because that that would provide states with an incentive to start their own exchange — in Randolph and Griffith’s words, Congress “us[ed] subsidies as an incentive to gain states’ cooperation.” Thus, in this narrative, Congress viewed getting states to run exchanges as an all-encompassing goal, trumping even the law’s stated goals of providing “Affordable Coverage Choices for All Americans” and achieving “near-universal coverage.” Needless to say, there is absolutely no evidence whatsoever that Congress actually viewed the administrative question of which set of government bureaucrats would run a particular state’s exchange as a question of such superseding importance that they were willing to deny health coverage to millions of people in order to ensure that the right set of bureaucrats run the exchanges in each state.
Selective mindreading, 101. That's what this ludicrous case boils down to, but for now, Republicans have managed to hurt millions of American families over what's effectively a typo.
But that's what Republicans do, after all. So please, Republican pundits, go on TV and tell everyone how awesome it is for 6 or 7 million people to lose affordable health insurance because of the Chewbacca Defense.
Let me know how that works out for you in November, with the whole "rooting for America to fail" thing.
Meanwhile, considering the full DC Circuit Court would be 7-4 Democrats, I'm thinking this will get overturned on a full en banc hearing rather quickly. Oh, and to top it all off, the 4th Circuit Court of Appeals also issued its ruling on the law, and it upheld the subsidies. Stay tuned.