Of course, the marginalia — the drafting oversight — ought to be corrected, and of course, the Supremes will likely issue an opinion to that effect. But the black letter law in almost all analogous situations is pretty clear: the IRS may interpret federal revenue and expenditure laws, and issue regulations reasonably implementing the will of our Congress. That it has done.
With the Fourth Circuit (upholding — with mostly Democrat appointees on the panel), and the DC Circuit (nullifying — in an all Bush 41 and 43 appointed panel) issuing directly contradictory opinions within hours of one another yesterday, I predict (unsurprisingly) the Supremes will have to take the case.
Also unsurprisingly, the Supremes will — I predict — take the Fourth Circuit’s opinion, nearly verbatim, as black letter law. The IRS plainly possesses the regulatory and rule-making power to make the laws of Congress work in what it sees as a reasonable way. Once a court concludes that “Congress’s intent in enacting [a specific provision] was not so clear as to foreclose any other interpretation“, then the IRS’s interpretation is to be given a wide berth.
The IRS has determined that it was an oversight in Congressional drafting, to suggest that federal money could not be used to fund subsidies for federal health exchange participants. And that determination is plainly a reasonable one — one which furthers Congress’s stated intent, in passing the ACA of 2010. Game — effectively over (but it will be late 2015, before the Supremes offer a published opinion, here).
A bit of the New York Times on it, this morning — do go read it all:
. . . .”You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” said Josh Earnest, the White House press secretary. “I think that is a pretty clear intent of the congressional law. . . .”
[Fourth Circuit] Judge Gregory said, the administration’s position helps achieve “the broad policy goals” of the Affordable Care Act. “The economic framework supporting the act would crumble if the credits were unavailable on federal exchanges,” he said. . . .
In a concurring opinion, Judge Andre M. Davis, a senior judge on the appeals court, said the plaintiffs’ argument “would effectively destroy the statute.” It would, he said, “deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law. Judge Davis and the other judge on the panel, Stephanie D. Thacker, were appointed by Mr. Obama.
The health law authorized subsidies specifically for insurance bought “through an exchange established by the state.”
When the law was adopted, Mr. Obama and congressional Democrats assumed that states would set up their own exchanges. But many Republican governors and state legislators balked, and opposition to the law became a rallying cry for the party.
The lawsuit in Washington, championed by conservative and libertarian groups, was filed by people in states that use the federal exchange: Tennessee, Texas, Virginia and West Virginia. They objected to being required to buy insurance, even with subsidies to help defray the cost. . . .
I run — again — the graphic of that goof-in-chief, Ted Cruz (R), as he is among the named amici submitting briefs to overrule the IRS’s interpretation of this provision of the ACA of 2010. He is one lost soul. And what to make of Governors Perry and Haslam, among otehrs? They tell the poorest people in their state — as your leader, I will not allow you to receive federal funds, to defray 95 per cent of your health costs — and as your leader, I will provide almost no state coverage for you. There used to be a term for that, on fuedal Europe — it was aristocratic robber-king. And we know what the peasants’ next move was. Right? Right. But here in the colonies, beheadings are now frowned upon. So, vote these jokers — out of office. They have betrayed their own people. Just my $0.02.