King v. Burwell is the case the Supreme Court agreed to hear involving Obamacare subsidies on federal exchange.

You will recall that the legal issue is whether the IRS violated the express provisions of Obamacare by issuing rules allowing taxpayers to claims federal subsidies when purchasing on the federal exchange, even though the language of the statute appears not to allow that.

In King, the Fourth Circuit ruled that there was possible ambiguity and another potential reading of the law, such that apparently clear language was not that clear, giving the IRS leeway to interpret the statute. In another case, Halbig v. Burwell, a D.C. Circuit panel had ruled that the subsidies were not available on the federal exchange, but that ruling was vacated pending the entire D.C. Circuit Court hearing the case en banc.

In a surprise move, the Supreme Court agreed to hear the King case even though there was no split in the Circuits (after the Halbig decision was vacated).

King will be one of the biggest decisions of this term, and if the Obama administration loses the case, it could be the death of Obamacare as we know it, because 37 states have refused to create state exchanges. Obamacare is affordable only with subsidies, and if the subsidies are not available to citizens of 37 states, the system likely collapses.

One key issue is whether the wording of the statute was a mistake or misstatement, or reflected a logical policy. Obamacare was set up in such a way as to put pressure on states to create state exchanges by providing for federal subsidies in the form of tax credits only for purchases on state exchanges. This was a conscious decision, as explained by none other than Jonathan Gruber:

Into the fray leaps Mark Levin and his Landmark Legal Foundation, which just filed a friend of the court, Amicus Curiae Brief. The full Brief is embedded below.

King v Burwell – Landmark Legal Foundation Amicus Brief

Here is a portion of the Summary of argument:

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 Executive Branch asks the Court to give its imprimatur to unilateral Executive Branch modifications to a tax credit scheme established in the Patient Protection and Affordable Care Act (ACA), Pub. L. 111-148, 124 Stat. 119; 26 U.S.C. §§ 36B(b)(2)(A), 36b(c)(2)(A)(i). In particular, the Internal Revenue Service (IRS) has issued a regulation making certain tax credits available to individual taxpayers who purchase individual health insurance policies through a state-specific marketplace. The question is whether the IRS has the constitutional authority to make tax credits available in every state regardless of whether a state insurance marketplace (defined as an “Exchange”) complies with the enabling statute. Id.

The Executive Branch, through the IRS, seeks to rewrite the statute’s unambiguous text by issuing a regulation conflicting directly with the law’s plain meaning. 26 C.F.R. 1.36B-1(k), 1.36B-2(a); see 77 Fed. Reg. 30,377 (2012). The result is a fundamental policy change effectuated without the Legislature’s input….

The statutory language at issue in this case is clear and unambiguous. That should be the end of the Court’s inquiry. Amicus Curiae Landmark Legal Foundation respectfully urges the Court reverse the United States Circuit Court of Appeals for the Fourth Circuit. Particularly when the Executive Branch is led by a president intent on “fundamentally transforming” the nation by using his “pen and phone,” it is incumbent on the Court to preserve the separation of powers in every instance. Jennifer Epstein, Obama points to 2014’s pen-and-phone strategy,, Jan. 14, 2014,

These are points similar to what I have made in dozens of radio interviews lately and in my Op-Ed in USA Today, Constitution’s horrible, no good, very bad year.

Mark Levin and Jonathan Gruber agree on how the law was written, it’s just that Gruber is backtracking now that video has come out of him taking positions, numerous times, that contradict the Obama administration’s legal position.

I don’t know to what extent the Supreme Court would consider Gruber’s comments, but regardless, the plain language of the statute should prevail, and Obamacare subsidies on federal exchanges should be tossed out.

King v Burwell – Landmark Legal Foundation Amicus Brief


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