- The Washington Times - Wednesday, February 4, 2015

President Obama’s top health official refused to say Wednesday whether the administration has a backup plan to deal with a Supreme Court decision this term that could blow a hole in Obamacare by invalidating many of its customers’ subsidies.

Health and Human Services Secretary Sylvia Mathews Burwell said Congress intended to provide the tax credits to every eligible American when it passed the Affordable Care Act, and that justices will see it the same way when they consider whether the IRS unlawfully extended the tax credits to customers on the federal exchange.

“We believe the letter of the law supports [our position],” she told the Senate Finance Committee at a hearing on Mr. Obama’s fiscal 2016 budget.

Committee Chairman Orrin Hatch said the administration should prepare for the worst.

The Utah Republican is among Obamacare opponents who’ve backed a legal challenge known as King v. Burwell, which says the law explicitly restricted subsidies to exchanges “established by the state,” meaning the exchanges set up by 16 states and the District.

“The legislation itself, the Affordable Care Act, talks only about these exchanges being created in the states,” Mr. Hatch said. “In my opinion, the regulations violate the constitution’s separation of powers.”

Undeterred, Mrs. Burwell said the administration will prevail before the justices. She said her main focus is on signing up uninsured Americans in the overhaul’s health exchanges before the Feb. 15 deadline.

Her agency will announce Wednesday that 7.5 million people have signed up on the federal exchange known as HealthCare.gov, and that 2.4 million picked a plan on the state-run exchanges, she told the committee.

Mr. Hatch is among several Republican leaders who’ve asked the HHS to discuss their plans for dealing with a ruling that invalidates subsides for the federal group.

For months, the administration has been mum on the subject. On Tuesday, Treasury Secretary Jacob Lew deflected entreaties from the House Ways and Means Committee for a plan to deal with “King.”

“I would suggest the administration ought to get one, just in case,” Mr. Hatch told Mrs. Burwell.

Sen. John Cornyn, Texas Republican, aggressively followed up on the chairman’s line of inquiry. He wanted to know if HHS has warned federal-exchange customers about the potential consequences of the ruling.

“We have not, senator,” Mrs. Burwell said, saying they are implementing the law as Congress intended.

She also refused to say whether HHS will seek a legislative fix if they lose before the court.

“You’re a highly intelligent, charming person, but you refuse to answer our questions,” Mr. Cornyn said.

The committee’s top Democrat, Sen. Ron Wyden of Oregon, reminded lawmakers that the “challenge at hand” was the budget, and not an upcoming court case.

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