Politics have been part of the Patient Protection and Affordable Care Act since its passage in 2010. And politics, according to legal experts, stand in the way of fixing a glitch in the law that’s at the center of several lawsuits challenging its legality.
“With a normal, less-polarized law, so many of these issues that have popped up, Congress would go back and fix,” said Iris Tilley, an employment and benefits attorney in Portland, Ore. “But because (the PPACA) is so politically polarized, Congress won’t go back and fix anything. So, you have the executive branch fixing the law through regulation.”
The legal action, Halbig et al v. Sebelius, pits Jacqueline Halbig, an Alexandria, Va., business consultant and senior policy adviser in the U.S. Department of Health and Human Services during the George W. Bush administration, against HHS Secretary Kathleen Sebelius.
Halbig and her co-plaintiffs – all of whom are located in states that have chosen not to set up an exchange – contend the PPACA only allows for subsidies when plans are purchased through state exchanges. Their suit also asserts that the IRS exceeded its legal authority when it issued its rule.
The PPACA explicitly states the tax credits are for those who bought health insurance “through an exchange established by the state.”
“The ambiguous language in the law could be clarified with the change of a few words, but a deeply divided Congress is unlikely to make that effort,” said Robert Klein, an employment law attorney in Alexandria, Va. “I don’t think anyone at the time the law was passed expected Republican-controlled states would refuse to set up an exchange because they were politically opposed to Obamacare.”