Commentary

The recent ruling by judges on the DC Circuit Court of Appeals represents a major threat to the entire structure of ObamaCare. It is, by far, the most serious threat yet to Obama’s agenda.

Media outlets have focused on the issue of tax funded subsidies flowing throughout the ObamaCare enterprise to individuals and insurance companies. The fact that the Appeals Court struck down those subsidies in the majority of states who did not create a “state exchange” is certainly a major blow. Among other implications, it would seem obvious that the ruling – if upheld on certain appeal to the Supreme Court – will have the effect of invalidating most of the individual contracts being purchased to date through the federal exchange.

The aspect of the ruling receiving less attention – that federal exchanges cannot impose penalties on individuals and companies – seems to be the most important. Unless the federal government retains the coercive power to impose ObamaCare on people and businesses, there is no possibility that ObamaCare can function. This is the part of ObamaCare which has spread fear and loathing throughout the private sector as business leaders face the prospect of IRS agents swooping down upon small and medium businesses to impose draconian penalties if they failed to comply with the insurance mandates.

Of course the Obama Regime has been fighting madly to deny that their law made any meaningful distinction between a “federal” exchange and a “state” exchange. At most, they have argued, the absence of language to impose penalties or give away tax dollars in the code section creating a federal exchange is a “typo”. 

But, of course, laws are laws. They say what they say, regardless of post-hoc constructions. The legislation Nancy Pelosi said we had to pass in order to actually read does not say anything about the federal exchange’s power to impose penalties. All of that language is in the sections dealing with state-based exchanges.

And, it turns out, this is no accident. The intrepid Rush Limbaugh has uncovered public statements by the law’s leading architect, one Jonathan Gruber. The man is an economics professor at MIT. Mr. Limbaugh has two video clips on his website right now in which Professor Gruber clearly explains that the ObamaCare law was written to coerce states into partnering with Obama in remaking America. There were the incentives of subsidies … and the sticks of penalties. Professor Gruber makes it clear that Obama & Company never envisioned that a majority of states would declined their gracious offer. This is a key piece of the backstory over ObamaCare’s disastrous roll-out.

This whole issue was hotly debated when the Idaho Legislature considered creating a state exchange. We were among those telling legislators that the ObamaCare law was badly written and that there was every chance that Idaho’s employers could be protected from serious sanctions if Idaho stood firm against Obama and his agenda. We were scoffed at by proponents.

At the very least, it seems clear that Idaho made a serious mistake in rushing to create a state exchange. On the other hand, the problem may be a more serious one for those who voted to partner with Obama.

The ruling by the DC Circuit demonstrates that our concerns were not only valid, they were very serious.

The matter will not be settled until the Supreme Court considers Obama’s over-reach and sleight of hand in pretending that the ObamaCare law gives the IRS enormous powers to regulate American enterprise. Our bet is that Obama is going to lose this fight, meaning that he will have to wait upon Congress to amend the law or abandon the whole scheme.

Such a ruling will not, tragically enough, bring any relief to the citizens or businesses operating in Idaho since the Legislature has made its pact with the devil. In that event, pressure will be fierce for the Legislature to repeal the state exchange.