Last week, the Supreme Court heard arguments in the most recent and pernicious attack on the Affordable Care Act – aka Obamacare. In the absence of a dysfunctional Congress, the case would be beneath the dignity of Court: it addresses no complicated legal issues that might guide future decisions of lower courts. Instead, the Supreme Court has been asked to decide whether a drafting error resulting in one unfortunate phrase in the much maligned 2000 page law –“Exchange established by the States” — means that more than 6.3 million citizens would not be eligible for federalsubsidies allowing them to afford commercial (i.e. – non-governmental) health insurance.
Ordinarily, Congress is expected to fix such drafting problems itself. Each year Congress pass dozens of “Technical Corrections” bills to fix such errors in prior legislation. These bills are akin to software patches that are regularly released by companies to fix unanticipated “bugs” previously release programs. But this is no ordinary legislation. Having spent six years vilifying for President Obama and has supporters for passing legislation that improves American lives it is far too late in the day for the Republican Congress to replace demagoguery with common sense.
So this issue is now in the lap of the Supreme Court, with its well-known partisan divide of four liberals, four arch-conservatives, and Justice Kennedy, who as the “swing vote” effectively decides many of the most divisive cases himself. The Court can decide to gloss over this drafting error, as proposed by the Obama Administration, or apply its language to devastating effect. Prior Supreme Court cases—i.e. “precedent” in the jargon of the law—can be found to support either position. In the end, there have been few cases in which the Court has more judicial freedom – assuming precedent ever really binds the Court – to do whatever it wants in keeping with the Justices own political biases.Continue reading…
