We now present Halbig v. Burwell, the court challenge by which two D.C. Court of Appeals judges would destroy the Affordable Care Act, thanks to one selfish dolt.
First, let's understand the grounds for the ruling. The plaintiffs don't like the ACA's health insurance mandate. They don't want to have to buy health insurance. They also don't want to pay the ACA penalty for not buying insurance. They face this penalty because, thanks to the tax subsidies offered by the ACA, they could buy health insurance on the ACA exchange for less than 8% of their income (that's the standard for "affordability" used by the ACA to determine whom to exempt from the insurance mandate).
But wait: if those subsidies weren't available, the cost of those cheapest qualifying policies would be more than 8% of their income. The ACA doesn't penalize people who can't afford insurance. So get rid of the subsidy, make health insurance unaffordable, and the plaintiffs get out of the penalty and the health insurance mandate!
So the plaintiffs get the D.C. Court of Appeals to rule that the language in the ACA authorizes the federal health insurance premium subsidy only in states that set up their own health insurance exchanges, leaving folks in 36 states (like South Dakota) forced onto the federal exchange by circumstance or Republican governors unable to access the premium subsidy that Congress intended via the ACA to make available to every American.
This thrilling political adventure is brought to you by one West Virginia man who would rather flip the bird at Uncle Sam and cause millions of his fellow Americans to pay hundreds, perhaps thousands of dollars more on their health insurance than pay $21 a year for health insurance for himself. From today's ruling:
The district court determined that at least one of the appellants, David Klemencic, has standing. Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year.1 He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty [Judge Thomas B. Griffith, Halbig v. Burwell, D.C. Court of Appeals, 2014.07.22].
For the record: if there's a health insurance policy sitting on your plate for $21 a year, and you don't want it, I'll buy it. Heck, I'll buy it and another one for you. I can find twenty people in ten minutes who would each chip in a buck to buy you your $21 a year policy just so you'll shut up and let everyone else enjoy affordable health insurance.
Mr. Klemencic's crass selfishness did not become law of the land today. Down the road in Richmond, the federal 4th Circuit Court, hearing the similar King v. Burwell lawsuit, ruled the opposite way. The 4th Circuit doesn't dunk the ball for the ACA, saying that the federal government offers a slightly better but not conclusive argument of legislative intent. Faced with plausible alternative interpretations, the court chooses not to usurp the IRS's regulatory authority to interpret legislative intent by applying the premium subsidy to federal exchange customers.
Read that again, Republican readers: the IRS is using its discretion to lower more Americans' taxes, and the 4th Circuit is eschewing judicial activism. Who's your friend?
The two D.C. Court of Appeals judges who supported Klemencic's argument are Republican appointees; the dissenting judge is a Democratic appointee. The three 4th Circuit judges who ruled in favor of the ACA and IRS are all Democratic appointees. Whatever the proper interpretation of the law (and heck, even mine may be colored by partisanship!), Black Hills big-thinker Stan Gibilisco wishes the courts could assure us they are reading the law, not the political scorecards:
Much to Gibilisco's chagrin, the press is playing that baseball, counting seven Democratic heads and four Republican on the full D.C. Court of Appeals, from which the Obama Department of Justice has already promised to request an en banc review of Halbig.
Meanwhile, over four million taxpayers who purchased insurance on the federal exchange and qualified for premium subsidies will live in uncertainty as to whether their insurer or the IRS will take that money back. But if those taxpayers lose, they can at least be happy for Citizen Klemencic's pyrrhic $21 savings.