Cleveland Plain Dealer discusses the argument advanced by by friend and fantasy football mate Jonathan Adler:
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law. ...
Adler, a Case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges. ...
Without the tax subsidies, the ACA cannot work. Its central tenet is insuring nearly every American, but health insurance would be too expensive for many people without the subsidies.
Adler, commenting via Twitter this afternoon, said that "our argument is that the law should be enforced as written." He also tweeted, "It's the IRS and Administration that are trying to 'overturn' the law with creative re-interpretations."