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July 22, 2014 12:02 PM DC Circuit Panel Agrees To Blow Up Obamacare

By Ed Kilgore

It’s not the kind of definitive decision that should justify conservative gabbers dancing with joy at the prospect of denying millions of people of health insurance, while panicking many progressives. But no, it’s not a good thing that a three-judge panel of the D.C. Circuit Court of Appeals has overturned a lower-court decision against a suit to invalidate tax subsidies for insurance bought on federally-created exchanges according to a reading of the Affordable Care Act that ignores congressional intent.

Sticking to a mindless reading of the statutory language (one of those flaws that could have been fixed had not Scott Brown won a 2010 special election and narrowed the path to final enactment of ACA), two of the three judges on the panel argued that the explicit authorization of purchasing subsidies for policies bought on state exchanges excluded any other unenumerated subsidies, even though it reduces the whole structure of ACA to an absurdity (as the dissenting judge forcefully argued).

The administration, however, will appeal the decision to the full DC Circuit, where the composition of the bench is more balanced. And even if the full Circuit agrees with the three-judge panel, the case will wind up at SCOTUS, since a Virginia suit with identical intent has already been dismissed.

The Supremes upheld ACA once, albeit while striking a damaging blow by making the Medicaid expansion a state option. Will they do so again? Expect a lot of talk about that in the coming months.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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