- - Wednesday, October 1, 2014

ANALYSIS/OPINION:

A year has passed since Americans were first told to enroll in Obamacare, or else. The Obamacare website has been a fiasco, with enormous security failures, and a year later there are as many Americans without insurance as ever.

The legal foundation of Obamacare continues to crumble like a month-old cookie. Another federal judge, acting as though words actually have meaning, decreed that if President Obama wants to correct his mistakes, he’ll have to change the words in a new law.

From his courtroom in Muskogee, Okla., Judge Ronald A. White cited the binding precedent in his circuit, the 10th, that holds that the government must not be allowed creative license to reinvent the law, which would be a mistake that “leads us down a path toward Alice’s Wonderland, where up is down and down is up, and words mean anything.”

Mr. Obama’s lawyers had urged the court to leap down the rabbit hole by insisting that the law that says only states will receive Obamacare subsidies actually means that everyone will receive Obamacare subsidies. That would certainly suit the convenience of the administration.

Only a few years ago, the administration argued the opposite. “I think what’s important to remember politically about this,” Jonathan Gruber, the MIT economist regarded as the godfather of Obamacare, said just two years ago, “is if you’re a state, and you don’t set up an exchange, that means your citizens don’t get their tax credits.” The administration made this clear on several occasions.

Mr. Gruber and the rest of the Obamacare team were flummoxed when 36 states rejected the promise of “free” tax credits and refused to set up a state-run Obamacare exchange. Residents in those 36 states could only sign up by logging into the federal Obamacare website. Though they weren’t entitled to receive a subsidy, the Internal Revenue Service — an agency not known for spontaneous generosity — gave them one, anyway. It was a giveaway of a half-trillion dollars without authority from Congress to do it.

Judge White’s ruling is an interim step that will set up a split among the appellate courts, and the Supreme Court will have to resolve it. Last month, the U.S. Court of Appeals for the District of Columbia Circuit held the law must be read in a way that preserves Obamacare. The judges who tipped the scales in that decision owe their jobs to Mr. Obama and Senate Majority Leader Harry Reid’s unprecedented use of the “nuclear option” to steamroll the minority and confirm them on a straight party-line vote.

In his ruling Tuesday, Judge White fired a shot at those who would portray his decision that words should mean what they say is part of a Republican scheme to “gut” Obamacare. “Such a case (even if affirmed on the inevitable appeal) does not ‘gut’ or ‘destroy’ anything,” he wrote. “On the contrary, the court is upholding the Act as written. Congress is free to amend the [Obamacare law] to provide for tax credits in both state and federal exchanges, if that is the legislative will.”

Neither Mr. Obama nor the Democrats in Congress will seek such a law, because they don’t have the votes, and they don’t have the will of the people behind them, and they know it.


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