President Barack Obama has long touted the Affordable Care Act as his cornerstone achievement. Now he increasingly insists citizens not take the law too seriously — and certainly not literally.
Thus, the administration has begun advocating a cafeteria approach to Obamacare implementation, picking and choosing which provisions to enforce. It defends IRS regulations allowing those obtaining insurance through federally run exchanges to qualify for taxpayer subsidies, not merely those in state exchanges. But the so-called Patient Protection and Affordable Care Act does not allow for that, as was made abundantly clear at a recent U.S. House subcommittee hearing chaired by Rep. James Lankford, R-Oklahoma City.
Jonathan H. Adler, a law professor at the Case Western Reserve University School of Law, notes Obamacare authorizes monthly tax credits when taxpayers obtain insurance through an exchange. …
This creates a quandary for the Obama administration. The law clearly authorizes subsidies only for those getting insurance through state-run exchanges. But 34 states, including Oklahoma, will have federal exchanges. Because business tax penalties are triggered when employees qualify for subsidies, those penalties are therefore not applicable in states with federally run exchanges. Without subsidies, the law’s provisions require waiving the individual mandate in many cases as well. The whole scheme then falls apart.
As a result, IRS regulators are now pretending the law says things it doesn’t say. The state of Oklahoma has sued in response.
Engaging in revisionist history, some Obamacare defenders suggest it would be absurd for the law to deliberately deny subsidies to those using federally run exchanges. …
Obamacare boosters now insist the law’s ambiguities require regulators to choose which provisions to enforce, or to enforce provisions that don’t exist. That Obamacare’s defenders now believe the law’s incoherence is a defense against criticism of its implementation is telling.
Critics agree with Obamacare boosters on one point: The law as a whole makes no sense. But this conclusion makes the case for repeal, not for selective enforcement.