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Video: The Forgotten Amendment

In this week's Freedom Minute, CFIF’s Renee Giachino questions what limits exist on the federal government and the importance of state and local sovereignty as envisioned by the Founding Fathers.…[more]

October 24, 2014 • 10:26 am

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
Oklahoma Challenges IRS Interpretation of ObamaCare Subsidy Print
By Ashton Ellis
Thursday, February 14 2013
If Oklahoma’s case is successful, ObamaCare’s insurance mandates and penalties would be effectively nullified in the Sooner State. Other states would likely follow suit.

There seems to be no end to the interpretive jujitsu government officials are willing to employ to save ObamaCare from its poorly written self. 

The newest example comes from the Internal Revenue Service. 

Under the terms of the Patient Protection and Affordable Care Act (i.e. ObamaCare), the IRS is charged with accounting for an important subsidy program.  The subsidies are tax credits that help reduce the cost of health insurance bought on a state-run exchange. 

The credits are needed because ObamaCare’s litany of mandates – such as requiring insurers to accept customers with pre-existing conditions – dramatically increase the cost of health insurance. 

For example, the IRS estimates that the cheapest health insurance plan to cover a family of five will cost $20,000 a year.  And even this only covers 60 percent of medical costs.

But as of now, 26 states are not planning to construct their own health insurance exchange, effectively defaulting to the federal Department of Health and Human Services to pick up the burden, according to the Kaiser Family Foundation.

That’s no problem for HHS since ObamaCare allows the agency to step in and administer an exchange in the absence of state action.  Never mind, of course, that an HHS-run exchange puts the cost back on the federal budget, undermining proponents’ claims that the law would not add to the federal deficit. 

But though the difference between a state-run exchange and a federally-run exchange doesn’t impact HHS, it is potentially an insurmountable hurdle for the IRS.

Under ObamaCare’s terms, IRS health insurance subsidies can only be distributed to people purchasing coverage on a state-run exchange.  The law says nothing about tax credits being available on a federally-run exchange. 

At the time the law was passed, the discrepancy wasn’t noticed because it was assumed that states would go along with the exchanges.  Moreover, the law’s size (more than 2,000 pages) and the lack of public scrutiny (drafted in secret and rammed through Congress) means that details like this were missed.  Thus, one of the key questions reviewing courts must ask themselves is how much leeway can it give to such a corrupt process and still uphold the rule of law?

As the State of Oklahoma is pointing out in a lawsuit (Pruitt v. Sebelius), the failure of ObamaCare to specify whether citizens buying through a federal exchange have access to the subsidies has at least two important consequences. 

First, it means that federal tax credits are not available to such citizens, putting health insurance coverage out-of-reach for individuals and families in a federal exchange. 

Second, it voids any penalties that apply under ObamaCare’s mandate to buy health insurance because, by the terms of the law, penalties can only be assessed on individuals or companies who have access to the subsidies and refuse to purchase health insurance.

If Oklahoma’s case is successful, ObamaCare’s insurance mandates and penalties would be effectively nullified in the Sooner State.  Other states would likely follow suit. 

Standing in the way is an IRS decision that ignores ObamaCare’s text and substitutes an interpretation that encompasses federal exchanges. 

Currently, Oklahoma and HHS are waiting for a federal district judge to rule on whether the state can bring its claim now, or if it must wait until the tax penalties come due.  But if the United States Supreme Court’s ruling from last year’s ObamaCare decision is any guide, the case will proceed on the merits with appeals likely all the way to Washington. 

If Oklahoma’s case does wind up on the Supreme Court’s docket, it would present the justices with another opportunity to either take Congress at its word, or save the legislature from itself with one more bit of interpretive wizardry.

In the summer of 2012, Chief Justice John Roberts infamously joined the Court’s liberal caucus to rewrite ObamaCare’s individual mandate, ruling essentially that Congress misspoke when it said the individual mandate was a proper regulation under the Interstate Commerce Clause.  Instead, what Congress meant to say was that the mandate was proper under the Taxing Clause, even though every supporter from the President on down swore that the requirement was not a tax.

A pernicious aspect of lying is that it inevitably requires practitioners to keep lying in order to avoid the truth.  ObamaCare is the law of the land because of a fallacious interpretation of clear text.  If the Court gets another chance to uphold the plain meaning of the statute, then for the sake of its own integrity it should face the facts, tell the truth and strike a blow against a corrupt law.    

Question of the Week   
Voters in how many states will be asked in the November 2014 mid-term elections to accept or reject state-wide ballot measures to legalize the recreational use of marijuana?
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Quote of the Day   
 
"In an effort to keep the public calm, the CDC pretended to know more about Ebola than it actually does.First, the CDC insisted that Ebola is very difficult to transmit from person to person. But, that is clearly not true. This particular Ebola strain appears to be more infectious than others. ...Second, the CDC insisted that Ebola is not airborne. That is probably mostly true, but it may not be entirely…[more]
 
 
—Alex Berezow, RealClearScience Founding Editor and USA TODAY's Board of Contributors Member
— Alex Berezow, RealClearScience Founding Editor and USA TODAY's Board of Contributors Member
 
Liberty Poll   

Thinking only about voting procedures and requirements in your state, how much confidence do you have that voter fraud will be kept to a minimum in the 2014 midterm elections?