"Or federal government"
Apparently, the lack of those three simple words in the text of the law may spell serious trouble for the ACA.
Let me explain. It seems that when the law was written, it specifically stated that tax-payer subsidies could be paid out by an "exchange provided by the State." Since it doesn't mention the federal exchange, a case entitled Halbig v. Burwell, now before the three-judge panel of the DC Circuit Court of Appeals, is asking that the subsidies be discontinued for all those who got their policies through the federal exchange rather than through state exchanges. Obviously, this would be a disaster for the law.
How serious a threat is this? I'll let Sahil Kapur of TPM address that issue:
Two of the judges, both Republican appointees, expressed varying degrees of sympathy for the challengers' case.
"Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act," Jonathan Turley, a professor at George Washington University Law School, told TPM.
At issue is whether the statute permits the federal exchange (which serves residents of 34 states which opted not to build their own) to dole out premium tax credits. Without the subsidies, which are benefiting millions of lower-income Americans, the individual mandate is unworkable because many people won't be able to afford insurance. And without the mandate, the coverage guarantee for preexisting conditions threatens to send costs soaring and destabilize the health care market.
There are two pieces of good news here:
The challengers initially lost the case in the US District Court of the District of Columbia, and if the Appeals Court overturns that ruling, the Administration could ask for a re-vote in the DC Circuit which is much friendlier territory for Obama, consisting of 7 Democratic and 4 Republican-appointed judges.
Moreover, many of the Democrats who crafted the original law have written a brief making the case that was it never the intention of the law to exclude the federal exchange from providing subsidies.
Also, I don't imagine that all those people who got subsidies with their new policies will be any too happy to have them taken away now. The Republicans cheer this one at their own peril.
Still, forewarned is forearmed and I would definitely recommend reading the whole article so you'll know what diabolical roadblock the right is erecting next for the ACA.