This in just a little while ago:
The U.S. Court of Appeals for the D.C. Circuit delivered a huge blow to Obamacare this morning, ruling that the insurance subsidies granted through the federally run health exchange, which covered 36 states for the first open enrollment period, are not allowed by the law.
…The court’s ruling agreed with challengers who argued that the plain language of the law, which in multiple instances limits subsidies and credits to any “Exchange established by the State,” does not allow subsidies to be disbursed in exchanges where a state declined to establish its own exchange and is instead run by the federal government. Basically, the federal government cannot step in and create and run an exchange that is somehow still an exchange established by a state.
So, the court says that the law means what it says rather than the interpretation the Democrats gave it. For a more ordinary law that had been passed in a more ordinary way, at this point its proponents could just go back and fix it. With Obamacare, nothing can be changed. That’s the price you pay for passing a law no one wants through machinations that subvert the legislative process and cannot be successfully repeated because Congress is now determined to undo it.
So other methods will be tried to keep the law functioning as is. That’s why I wrote in the title of this post, “don’t get too excited.” The first approach will probably be to seek en banc review of the judgment, which means having the entire DC Circuit (eleven judges, seven Democrat appointees to four Republican ones*) rule on it, which wouldn’t happen till the fall. You can guess how that would go. And then I’m assuming it’s to the Supreme Court for the final word, and I’m also assuming that probably couldn’t happen till after the 2014 election.
[*NOTE: Remember the end of the filibuster for judicial nominees? That meant that Obama was able recently to change the makeup of the DC Circuit Court, the focus of that fight. At the time of the filibuster's demise, the Court was still an equally representative body, 4-4. After Obama had subsequently put three more judges on it, it became 7-4 Democratic:
The immediate impact will be to turn the D.C. Circuit — often the only check on a president’s executive power — into a rubber stamp for Obama’s unilateral rewriting of statutes, his questionable executive orders, his overreaching agency regulations, and his other Nixonian abuses of executive authority.
That is precisely what has happened, if the Court is asked to decide en banc. The Supreme Court is still nominally even between liberals and conservatives, but if anything should happen to any of the conservative justices or the swing justice during Obama's remaining tenure, that situation is finished, too, and the liberal dominance of the Court will be assured for many many years to come no matter which way the country trends.]
[ADDENDUM: The Obama administration says this will not affect subsidies while the case moves through the court system. It's not clear on what basis the administration asserts that, but maybe it's just "because we say so."]
[ADDENDUM II: And another federal circuit court has just ruled the other way, which virtually guarantees that SCOTUS will take up the cases in order to resolve the disagreement.
And if previous experience is any guide, I will even go so far as to predict SCOTUS will find a way to uphold the subsidies, for the simple reason that they have shied away from dealing a death blow to Obamacare, as being too disruptive.]