Obamacare Could Hang in Balance

By Bre Payton Jun 17, 2013, 6:33 PM  

The court’s decision in Halbig v. Sebelius will determine the extent of the federal government’s authority to establish exchanges on behalf of states that have effectively opted out of Obamacare.

ALEXANDRIA — All of the Affordable Care Act could hang on the outcome of an upcoming court case.

The court’s decision in  Halbig v. Sebelius will determine the extent of the federal government’s authority to establish exchanges on behalf of states that have effectively opted out of Obamacare.

If the court sides with the plaintiff, four individual taxpayers and three employers, the 33 states that have not yet set up an exchange system — including Virginia — will have thwarted the mandate and prevented the federal government from creating one on their behalf.

The Cato Institute assembled a four-person panel on Monday to discuss the legal issues surrounding the case and answer questions from the audience and Twitter followers.

Michael Carvin, the lead attorney for the taxpayers and employers on the Halbig side, and Michael Cannon, director of health policy studies at Cato, argued that Section 1311 of the ACA prevents the federal government from establishing an exchange on behalf of the states that fail to do so themselves.

Carvin’s rationale for this is that Congress, in an attempt to ensure that the legislation would pass the House and Senate floors, needed to make the language of the ACA more appealing to those who favor state sovereignty.

He said Congress accomplished this by leaving it up to each of the states to decide whether or not they would opt into Obamacare, while raising the financial stakes. For the states who opted in, the IRS offered to issue hundreds of billions of dollars in subsidies to health-insurance companies, and penalize taxpayers and employers.

“You can’t make states do something — you have to bribe them with an offer they can’t refuse,” Carvin said.

Robert Weiner, Partner, Arnold & Porter, and Simon Lazarus, senior counsel at the Constitutional Accountability Center, argued against that interpretation, saying that allowing states to opt out entirely is counterintuitive in light of the purpose of the bill.

By looking at the whole, you can see that the definition of the exchange offered by Carvin and Cannon is inaccurate, Lazarus said.

“They’re asking sympathetic judges for an eleventh-hour bailout,” he said.

“This article first appeared on Franklin Center. Reproduced with permission”

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