Conservative radio host and Landmark Legal Foundation President Mark Levin has submitted an Amicus brief in support of the petitioners in King v. Burwell, the Obamacare legal case that will be heard by the Supreme Court on March 5, 2015. The case addresses whether “the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.” Essentially, the case looks at whether federal subsidies are legal and available to people living in states that did not set up their own Obamacare exchanges.
“This is a case about first principles. The Executive Branch has not only exceeded the boundaries of the legislative power, but has done so in an effort to circumvent the principles of representative government to avoid securing the consent of the governed,” the brief states. “The Constitution separates the powers of government to protect the liberty of the American people and prevent the tyranny of a self-aggrandizing government. Attempts by the Executive Branch to assume the legislative function deprives the People of an open debate conducted by their politically accountable representatives and is antithetical to the Constitution’s design.”
“For the foregoing reasons, the regulations issued by the Executive Branch in the instant case were constitutionally invalid. The 4th Circuit Court of Appeals decision should be reversed and the legislative power restored to its properly limited exercise,” the brief concludes.
“I think what’s important to remember politically about this is, if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits (subsidies),” Gruber said at a lecture in 2012. “But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”
As it turns out, 36 states did not set up their own health insurance exchanges. The federal government did it for them. And now the law’s language — which was intended to prod states to set up their own exchanges — may come back to haunt the law’s authors.