The Obama White House is claiming that part of the way Obamacare is written is nothing more than a drafting error. In a ruling this week, U.S. Court of Appeals for the District of Columbia Circuit voted that the way the law is written—tax credits to people to buy health insurance—does not allow the federal government to provide subsidies, and that it only applies to people buying policies through “exchanges established by the State.”
Those subsidizes, by the way, can be sizable. In Montana, for example, the average plan on the federal marketplace costs $99, but that is with the aid of a $444 per month subsidy. And as Charles C. W. Cooke (NRO) writes, “There is nothing in the text of the Affordable Care Act that permits the federal government to subsidize health-insurance plans sold through federal, and not state, exchanges. Consequently, the Obama administration has been acting illegally since January.”
Further, if you accept the defense that it was a drafting error, then it is Congress alone—not the IRS, not the courts, not the executive branch—who can change that error.
Cato Institute’s Michael Cannon, the architect behind the case, maintains that it was not a minor mistake or drafting error, and the court’s decision was based upon the plain meaning of the law itself. Mr. Cannon argues that the text of the law is “clear, uncontradicted, and unambiguous.” Jonathan Adler, a law professor at Case Western Reserve University and Michael’s co-author, adds, “The burden is on the government to explain why it may depart from the text.”
Ilya Shapiro, senior fellow in constitutional studies at Cato Institute, notes, “Today’s ruling shows that Obamacare, a cynical political bargain that lacked popular support from day one, simply doesn’t work as conceived. It’s time to repeal this Frankenstein’s monster and instead pass market-based health care reform that lowers costs, expands choice, and increases quality-all while respecting the rule of law.”