White’s reasoning is clear and persuasive to anyone not awash in convoluted constitutional theories.

Tweet

This week, a federal judge in Oklahoma ruled that the IRS is violating the terms of ObamaCare by giving tax credits to people buying health plans through Healthcare.gov, the federally owned and operated insurance exchange.

The decision by Ronald A. White, a federal district judge, opens up a new front in the fight to weaken the controversial health law.

As written, the text of ObamaCare only makes subsidies – in this case tax credits – available to people purchasing health insurance on a state-based exchange. Critics of the law say that a straightforward application of the text means that the IRS has no authority to override the plain meaning of the statute. 

The fight essentially comes down to how seriously a bureaucrat – and by extension, a judge – should take Congress when the latter passes a law.

Legally, the term “deference” means that a judge will allow a bureaucratic interpretation of a statute to stand if the agency’s implementation is not arbitrary, capricious, an abuse of discretion or in some other way violates the law.

In this case, the Obama administration is arguing that the law’s failure to make subsidies available to users of any ObamaCare exchange is simply not a problem. Since the purpose of the law is to make health insurance affordable – and affordability for millions of people can only be achieved with a taxpayer subsidy – then the IRS is by necessity required to honor the spirit, if not the letter, of the law.

Judge White didn’t buy it.

“The court holds that the IRS rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” he wrote in his ruling.

White’s reasoning is clear and persuasive to anyone not awash in convoluted constitutional theories.

If the federal bureaucracy, which is an arm of the executive branch, can ignore the plain meaning of a legislative text to implement a program that Congress never approved – and in this case, explicitly disapproved – then there is no meaningful constraint on executive power.

Legislative history indicates that the architects of ObamaCare intended the distinction over subsidy eligibility as a way to incentivize states to pay the start-up costs for their own exchanges rather than risk anger from citizens over sticker shock.

In short, it was an attempt to offload an expensive mandate while at the same time claiming that ObamaCare would be budget neutral.

At present, 26 states do not have an ObamaCare exchange, and the federal government’s share of the law’s fiscal burden continues to grow.
 
Once the law passed, the Obama administration and its allies in Congress no longer needed the veneer of budget neutrality to get what they wanted. It was likely a quick meeting to instruct the IRS to write a rule that upheld the intent of the law’s drafters rather than implement what they actually drafted.

If Judge White’s decision stands, it would mean that people in states without a locally operated exchange would get the version of ObamaCare Democrats in Congress designed: Paying the full cost of government-mandated health insurance – adding thousands of dollars to many customers’ annual premiums. 

It would also hold Congress accountable for passing a poorly written law. “Congress is free to amend [ObamaCare] to provide for tax credits in both state and federal exchanges, if that is the legislative will,” wrote White.

Time will tell if White’s opinion gets a chance to persuade the Supreme Court.

Previously, the Fourth Circuit upheld the IRS’s textless authority, while the D.C. Circuit has vacated a three-judge panel’s decision against it. The case – known as Halbig – will be re-argued before the entire D.C. Circuit later this year.

Ordinarily, the Supreme Court doesn’t weigh in on controversial issues unless there is a split among circuits on how to resolve them. If the D.C. Circuit reverses itself, all eyes will turn to the Tenth Circuit where Judge White’s district resides.