In the currently-pending case of King v. Burwell before the Supreme Court of the United States, many keep misconstruing the portion of the bill that is up for debate: “an exchange established by the state”. Here’s the full sentence of the section in question — 26 USC § 36B(2)(A) [emphasis mine]:
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of— the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act…
Nothing here about Healthcare.gov.
In the second emphasized section, you see those two words after “State”, where it mentions “1311 of the Patient Protection and Affordable Care Act”? Section 1311 is now referenced as 42 USC § 18031. If you read through the section, it’s entirely about the individual States setting up exchanges and the qualifications they need to meet.
Subsection (a) of the section talks about financial assistance to the States to establish exchanges. Subsection (b)(1) says “Each State shall, not later than January 1, 2014, establish and American Health Benefit Exchange (referred to in this title as an ‘Exchange’) for the State”.
Again, it’s talking about State exchanges, not Healthcare.gov. In fact, nowhere in the section 18031 will you find anything about an exchange established by the Department of Health and Human Services. The entire section is about exchanges established by the individual States. Nor does it reference any section talking about Healthcare.gov.
So why are so many liberals misconstruing the argument regarding the IRS rule to just the 6 words? To get what they want. And to that end, many have referred to the Supreme Court as a “death panel” if they rule against the IRS rule, while many have said this will determine whether the Court still has any integrity — meaning it still has integrity if they rule the way they want them to rule. Seriously there is no end to the insanity on the left with regard to this — probably because they see this case as having decent likelihood of sinking their precious health care law.
A plain reading of the language of the section in question shows that subsidies cannot be extended to plans offered through Healthcare.gov. The failure to include Healthcare.gov plans was either an oversight, or it was intentional. Either way it renders void the IRS rule extending subsidies to plans purchased through Healthcare.gov.
And hopefully the Supreme Court will rule in that direction, upholding the language of the law as it is written and not trying to read beyond it to some unspecified “intent”, as many have claimed they should do. “Well Congress intended to extend the subsidies, so they should defer to that intent.”
And if the Supreme Court allows it in this one instance, it sets up a major slippery slope. The language of the law does not authorize the IRS rule, and that is how the Court should decide in this case.
Full language of the Patient Protection and Affordable Care Act can be found here.