Obamacare Subsidies Face Legal Challenge

By  ACLJ, Special for USDR

The American Center for Law and Justice (ACLJ), which focuses on constitutional law, today filed an amicus brief with the U.S. Supreme Court urging the high court to reject IRS regulations illegally authorizing tax subsidies for purchasers of health insurance on federal healthcare exchanges.

In the brief the ACLJ contends that “the IRS regulations are part of the Administration’s ongoing effort to rewrite or suspend portions of the ACA (Affordable Care Act), in violation of the separation of powers.”

“This is another example of the executive overreach of the President,” said Jay Sekulow, Chief Counsel of the ACLJ. “The IRS regulations in place are the most egregious example of the Administration’s make-it-up-as-we-go approach to implementing ObamaCare. They eviscerate ObamaCare’s goal of encouraging state participation and promote the federalization of this nation’s healthcare in direct contravention of Congress’s intent. This violates the separation of powers and we are urging the high court to reject this flawed approach.”

A key part of the Affordable Care Act (ACA) says the subsidies are available only to Americans who enrolled “through an exchange established by the state” – a clear reason that the subsidies shouldn’t be available to those in states without their own exchanges.

The ACLJ rejects the Obama Administration’s contention that the intent of the law was to offer subsidies and expand coverage to Americans in every state, arguing the IRS has been wrongly interpreting the law to mean Americans in every state should be eligible for the cash.

Sekulow added: “The law must be applied as written. That is vital to democracy. And if the law as written doesn’t work, it must be corrected through a democratic process, not regulatory fiat.”

The ACLJ’s amicus brief is clear:

“In extending tax-subsidies to purchasers of health insurance coverage on federally established exchanges, the IRS regulations rewrite a core provision of the Patient Protection and Affordable Care Act (“ACA”), without which the law would not have passed, in a direct assault on the separation of powers. Authorizing the expenditure of hundreds of billions of dollars in subsidies, as well as billions in penalties against employers and individuals, the regulations were promulgated with virtually no concern for Congressional intent or the plain meaning of § 36B.

The IRS regulations were promulgated notwithstanding the Administration’s own “indispensable expert’s” recognition that the law limited tax subsidies to insurance coverage purchased on state-established exchanges.”

The brief in the case of King v. Burwell is posted here. The Supreme Court has scheduled oral arguments for March 4, 2015 with a decision expected by the end of the term.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice (ACLJ), focusing on constitutional law, is based inWashington, D.C. and is online here.

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