ObamaCare opponents try to bolster case

ObamaCare challengers filed a new brief to the Supreme Court on Wednesday night, seeking to rebut the Obama administration’s arguments defending healthcare subsidies.

{mosads}The closely watched case, King v. Burwell, which the court will hear on March 4, is a major test for President Obama’s signature domestic achievement.

The Competitive Enterprise Institute, which is leading the challenge, argues that the phrase referring to insurance marketplaces under the law “established by the state” prevents subsidies from being disbursed to people in the 37 states using federally run marketplaces, because those are not established by a state.

A ruling in the challengers’ favor would mean millions of people would lose subsidies that help make insurance affordable for them.

The new brief is a rebuttal to the arguments made in the Obama administration’s filing defending the law. The opponents focus on the administration’s argument that “established by the state” is a “term of art” and therefore also encompasses federally run marketplaces. 

“It would certainly be convenient, for an agency seeking to rewrite a statute, if an English phrase can become a term of art on the Government’s mere say-so,” the challengers write. “It cannot.”

They argue a phrase must already have a “well-known meaning” for it to be used as a term of art.

Aside from the term of art debate, the government’s main argument is that the challengers are simply reading way too much into one phrase in a huge law. It makes no sense that Congress would have hidden an incentive for states to create their own marketplaces in one phrase, the government argues.

“It would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation in subclauses setting forth the technical formula for calculating how much the subsidy should be,” the government wrote in its brief filed last month.

Outside of the legal briefs, the Obama administration on Wednesday used the new better-than-expected enrollment numbers for health insurance through the exchanges to argue that the Supreme Court should not roll back the expansion of coverage.

“One thing is for sure, Americans don’t want the progress we’ve made to be taken away from them,” said Health and Human Services Secretary Sylvia Mathews Burwell.

The challengers argue in the new brief, though, that the administration brought any bad consequences of a ruling against the law on itself. The brief blames the IRS for ruling that subsidies can also flow to federally run exchanges. 

“These consequences are the result of the IRS Rule, not the statute,” the brief states. “Had the IRS from the start made clear that subsidies were limited to state Exchanges, states would not have overwhelmingly refused to establish them.”

If the Court ruling, expected by June, goes for the challengers, it will set off a political scramble to figure what to do about the people losing their subsidies. The Obama administration refuses to say if it has a contingency plan, insisting that the Court will rule in its favor. 

House Republicans, meanwhile, have appointed three committee chairmen, including Rep. Paul Ryan (R-Wis.), to come up with a Republican proposal for a contingency plan.

Sam Kazman, general counsel for the Competitive Enterprise Institute, expressed confidence in his side’s arguments’ ability to win the day.

“As the brief demonstrates, the government is manipulating language, purely, simply, and without justification,” he said in a statement, later adding, “We look forward to our day in court.”