Tag Archives: Jurisprudence

What if Congress Accidentally Killed Obamacare? Unpacking the two recent Obamacare decisions in Plain(ish) English.

CapitalAs you may have seen, the D.C. Circuit Court of Appeals and the 4th Circuit Court of Appeals recently handed down decisions which alternately crippled or saved the tax credit system that powers the Affordable Care Act’s (ACA/Obamacare) insurance exchanges.  The cases center around whether or not the ACA limited the availability of refundable tax credits to state-run (as opposed to federally-run) insurance exchanges by calculating the credits based on months covered under a policy “enrolled in through an Exchange established by the State.”  Really, the heat of the entire debate centers around one the letter “S.”  How so?  Well, I’ll explain it in more detail below, but the short answer is that “State” is a defined term explicitly meaning the 50 states plus the District of Columbia, while “State Exchange” or even “Exchange established by the state” would be a more ambiguous term that could have a broader meaning, and it turns out that a little ambiguity is as valuable as gold for the Executive Branch’s position.  In the end, I think we’re left in the rather curious position where Congress fairly clearly meant to give credits to eligible individuals enrolled in any Exchange, but Congress also pretty clearly actually wrote the law in a way that does not extend those credits to individuals in federally-run Exchanges.  So what do we do?  How do we balance things out?  Our answer to that will end up saying a lot about the way that we view the operation of government, and I think that answer also opens up a serious strategic opportunity for Republican lawmakers.

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