Obamacare back in court Tuesday | The Daily Caller

Obamacare is in serious danger. After weathering a Supreme Court challenge that threatened to gut the law by striking down the individual mandate, major pillars — the business penalty, the individual penalty, and the generous health-care subsidies that make the exchange plans affordable — are being challenged in court, with at least two lawsuits potentially dealing mortal wounds before New Year’s Day.

The chink in the armor is that Obamacare subsidizes plans for people “enrolled in through an exchange established by the state under section 1311 of the Patient Protection and Affordable Care Act,” but in a move Democrats didn’t expect, 34 states didn’t establish an exchange. And if people aren’t able to access these subsidies, they can’t be penalized.

In addition, businesses where the employees are unable to access these subsidies also can’t be penalized. Two hundred million Americans live in those 34 states — a hefty chunk of the U.S. population.

“This is far more egregious than any other step the president has taken to ignore or rewrite federal law,” Cato Institute healthy policy studies director Michael Cannon told The Daily Caller, “because here, what the president is doing is trying to borrow and spend hundreds of billions of dollars that Congress expressly prohibits him from touching, from spending.”

But why would Democrats include this self-destruct mechanism in the law? As “an incentive for states to act,” Cannon explained — one that wasn’t fine-tuned when the Democrats scrambled to jam Obamacare through after Republican Scott Brown’s special election upset the balance in the chamber. “The incentive they created is creating an exchange,” Cannon said. “They never expected it to become law. They never expected, even if it became law, for states to refuse to set up exchanges.”

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