CHIEF JUSTICE ROBERTS MAY REDEEM HIMSELF

Democrats who thought last week couldn’t have been worse learned Friday they were mistaken.

The Supreme Court agreed to decide whether it is legal for the IRS to subsidize Obamacare policies purchased on Healthcare.gov, the federal exchange.

The Obamacare statute restricts payment of subsidies to taxpayers who purchase insurance "through an Exchange established by the State," a three judge panel in the Court of Appeals for the District of Columbia ruled July 22 in Halbig v. Burwell (Sylvia Burwell is secretary of Health and Human Services).

That was a drafting error, Democrats said. Congress intended that purchasers of health insurance on the federal exchange get subsidies, too.

It is customary for courts to apply laws as they are written, not as lawmakers wish they had been written. And the language restricting subsidies to purchasers on state exchanges is repeated or referred to 9 times in the statute, noted Michael Cannon of the CATO Institute.

But a few hours after the panel in the DC Court of Appeals ruled against the administration, a three judge panel in the Fourth Circuit Court of Appeals (Richmond) ruled in its favor. The law is ambiguous, said the panel, comprised entirely of Democrat appointees. Consequently, the rules the IRS issued permitting payment of subsidies to purchasers on the federal exchange too were within the agency’s discretion.

Democrats had anticipated legal trouble. Last fall Senate Majority Leader Harry Reid, D-Nev, "nuked the filibuster" as it applies to judicial nominees so President Obama could pack the DC circuit, which granted an administration request to rehear Halbig en banc (by all 11 judges). This rendered the panel’s decision moot, which was in turn rendered moot by the Supreme Court’s grant of certiorari.

Multiple statements by Obamacare architects unearthed since the Fourth Circuit panel’s ruling have removed all ambiguity.

By restricting subsidies to purchasers on state exchanges, the Obama administration hoped to bully states into establishing exchanges, said MIT economist Jonathan Gruber, the admnistration’s leading private consultant, in videotaped remarks in 2012.

Only by conditioning tax credits on state compliance could the federal government induce state cooperation with Obamacare, said Sen. Max Baucus, D-Mont, who shepherded the bill through the Senate Finance Committee.

To find for the administration, the Supreme Court would have to ignore both the plain meaning of the words of the law, and its legislative history. Neither liberal nor conservative legal experts expect that to happen.

Four Justices must vote to grant certiorari. Cert votes aren’t announced, but presumably the four who found Obamacare unconstitutional in 2012 voted to take up the subsidy case.

One reason why Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy are expected to have company is because the constitutionality of Obamacare isn’t at issue. To find for the plaintiffs, the Supreme Court need rule only the administration must enforce the law as written.

Ruling that way would kill Obamacare, because nearly 80 percent of enrollees receive subsidies, and more than 80 percent of them enrolled on the federal exchange. Even with subsidies averaging $3,312, many who get them have trouble paying their premiums, because of the sharply higher costs imposed by Obamacare.

"The Supreme Court follows the election returns," said Mr. Dooley, alter ego of Chicago newspaperman Finley Peter Dunne (1867-1936). If so, that’s another reason why plaintiffs likely will prevail.

Conservatives called Chief Justice John Roberts "turncoat," "traitor" and nastier names after he was the surprise vote in the 5-4 decision to uphold Obamacare. Many wondered if the Obama administration was blackmailing him.

I didn’t join in the calumny, because I think the chief justice was right when he said it isn’t the business of the courts to correct mistakes voters make. We had to experience Obamacare to really, really hate it.

I expect Justice Roberts to vote with the Fab Four this time. I won’t be surprised if a liberal or two joined them. The fig leaf of ambiguity the Fourth Circuit panel used to justify its ruling has been stripped by the Gruber videos.

And given what an albatross it was around their necks in the midterms, perhaps the kindest thing a liberal justice could do for Democrats is to euthanize Obamacare before it drags more down to defeat in 2016.

Jack Kelly is a former Marine and Green Beret and a former deputy assistant secretary of the Air Force in the Reagan administration. He is national security writer for the Pittsburgh Post-Gazette.

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