The PJ Tatler

Report: Major Glitch Threatens ObamaCare's Ability to Function

Insert “we have to pass it to find out what’s in it” joke here. The fact is, hardly anyone in Congress who actually voted to pass ObamaCare — they’re all Democrats — bothered to read it or understand it. The bill was over 1,000 pages thick, and it dropped at the last minute. The Democrats rushed the vote despite, or maybe because of, the lack of review period (and smeared the Tea Party for opposing them). President Obama was derelict in his duty as president when he signed it into law without knowing what was in it or whether the bill was even constitutional. Now it turns out that there is a huge glitch in the law that may allow states to essentially nullify it. And now that they’re aware of the problem, the Obama administration is trying to go outside Congress and the law to fix it.

The law encourages states to create health-insurance exchanges, but it permits Washington to create them if states decline. So far, only 17 states have passed legislation to create an exchange.

This is where the glitch comes in: ObamaCare authorizes premium assistance in state-run exchanges (Section 1311) but not federal ones (Section 1321). In other words, states that refuse to create an exchange can block much of ObamaCare’s spending and practically force Congress to reopen the law for revisions.

The Obama administration wants to avoid that legislative debacle, so this summer it proposed an IRS rule to offer premium assistance in all exchanges “whether established under section 1311 or 1321.” On Nov. 17 the IRS will hold a public hearing on that proposal. According to a Treasury Department spokeswoman, the administration is “confident” that offering premium assistance where Congress has not authorized it “is consistent with the intent of the law and our ability to interpret and implement it.”

Such confidence is misplaced. The text of the law is perfectly clear. And without congressional authorization, the IRS lacks the power to dispense tax credits or spend money.

So we would now be putting the IRS even more into our personal health care mix. Democrats don’t have a problem with this? Nor do they have a problem with the IRS taking up authority that no law anywhere actually gives it? If these actions stand, it’s hard to see how we’re a nation of laws anymore. We’re deeper into becoming a bureaucracy and regulatory state.

Twenty-six states have sued to have ObamaCare overturned, so it’s reasonable to conclude that a majority of states will never set up these exchanges. If the law survives SCOTUS review, Congress must re-open it to revise it. The Obama admin knows the numbers aren’t there on the Hill anymore to fix the bill without Congress taking the opportunity to scuttle it entirely, so they’re doing everything they can to go outside the normal democratic process. This is of a piece with the Obama administration’s tactics since the mid-terms, doing everything possible to bypass Congress and implement partisan policy, while daring the divided Congress to do anything about it. They’ve done this with immigration policy, with environmental policy, and now they’re trying it in a rescue effort on behalf of ObamaCare, a law that was unpopular when it passed and remains unpopular today.