In a 6:3 decision, SCOTUS rescued Obamacare once again. Obamacare, untouched by Donald Trump and the Anti-Death Panelists, was almost brought to its knees by a single word; a lowly, miserable, reclusive preposition – “by”.
A brief summary.
Obamacare helps low income families buy health insurance through subsidies doled out by the Internal Revenue Service (IRS). Health insurance is sold at online marketplaces called exchanges. The online exchanges have been created by the state or the federal government. The statutes say that subsidies are available for insurance bought “through an exchange established by the state.”
The plaintiffs in King v. Burwell alleged that the IRS was illegally subsidizing people in over thirty states where the federal government, not the state, established the online exchanges.
The administration claimed that the subsidies applied in all states. That the language was admittedly sloppy and “by the state” also meant “by the federal government.” The country is now so polarized that even prepositions must take sides.
SCOTUS agreed. Interpretation must yield to context – aka common sense. And the context was the law’s obvious goal which is to insure as many people as possible.
King v. Burwell took pettifoggery to a new level. But this was not a war of words. This is an ongoing war between two worlds which disagree about the role of government in healthcare. One world clings to self-reliance and the other wants more government. Both underestimate the angst they cause the other.
David King, the lead plaintiff, is a rugged individual, who would never use Obamacare, out of principle. So he says. Presently 64, King will soon be eligible for Medicare, the generous government single payer, which covers unlimited medical services from middle age to grave for both conservatives and liberals. Time will tell if King’s principles stop him from using Medicare.
SCOTUS not only rescued millions of low income people who would not have bought insurance had the subsidies been declared illegal. SCOTUS not only rescued the insurance market, which relies on minimum participation, and would have collapsed. SCOTUS not only rescued the IRS. SCOTUS not only rescued Obamacare. SCOTUS rescued the Republicans as well.
“It’s a bird….It’s a plane….No. It’s SCOTUS.”
SCOTUS rescued the Republicans from the angry mobs who would have had their subsidies rescinded. SCOTUS has given the Republicans more time to think of an alternative to Obamacare.
To be fair to the Republicans, this suit was not engineered by them but conservative scholars and think tanks. Cato is one such libertarian organization, known for scholarly consistency and metronomic logic. The logic, so often aesthetically pleasing, does get painfully tedious at times.
Amongst others, the lawsuit was the intellectual product of Michael Cannon, a Cato scholar. Cannon emphasizes that he is libertarian, not a Republican, and that he opposes Obamacare, not because of animosity towards Obama, but an irreconcilable belief in free markets, equality and the rule of law.
I believe that Cannon is sincere. He has taken a lot of flak on Twitter, ranging from ridicule to ridiculous comparisons with Lucifer. He has always responded gracefully and with consistent logic. I suspect he was a formidable college debater.
Sincerity matters. But sincerity is also the last refuge of blithering nonsense. Holding statutory language to scientific precision can border on parody. Perhaps Lewis Carroll had lawyers in mind when he wrote the chit chat between Alice and the March Hare at the Mad Hatter’s tea party.
“Then you should say what you mean,” the March Hare went on.
“I do,” Alice hastily replied; “at least–at least I mean what I say–that’s the same thing, you know.”
Some argue that statutory language must say what it means and mean what it says. We are, after all, but a short step to anarchy, but for the rule of law. This is partly correct. But when plain language is taken too literally, little space is left for common sense.
If language is even more devoid of context, we will be even more overregulated and even more overlawyered. This country is less free than it first appears and excessive deference to plain language is one of the reasons, in my opinion.
That SCOTUS even deliberated King v. Burwell surprised me. But I am not a scholar of law. I have more chances of finishing Memoirs of a Geisha than a book on administrative law. And SCOTUS has a history of breathing scholarship to parody. Its deliberations remind me of the British comedy, Yes Prime Minister<https://www.youtube.
The one-liners of SCOTUS are stuff of legends. My favorite one came from Justice Potter Stewart who, when defining pornography in Jacobellis v. Ohio, conceded “I know it when I see it”. And this decision was no exception. To cement the decision, Justice Roberts said, with breezy after sense, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
The best line came from Justice Scalia. Frustrated with the badly written Obamacare, Scalia quipped “we should start calling this law SCOTUScare.”
If the Onion is recruiting writers it need look no further than SCOTUS.
It is reassuring that common sense still resides in the Supreme Court, though disheartening how frequently SCOTUS is asked to deliver it. SCOTUS seems happy to guard common sense, as well as the constitution, but as far as poor grammar is concerned, it says Americans are on their own.
But what SCOTUS really has said in King v. Burwell, and NFIB v. Sebelius and others, is that it will not overturn what has arisen from the ballot. There is a tendency I have noticed. When we like the results of the ballot we laud democracy. When we don’t like the results we run to SCOTUS crying “O Republic, Republic, wherefore art thou Republic?” SCOTUS has called our bluff. And rightly so. There is a time and place to resolve pettiness. It’s called an election.
If people truly dislike Obamacare as much as many claim others dislike Obamacare then they can speak with their votes in 2016. I have my doubts.
About the author
The author’s opinions do not reflect the opinions of his institution or his family. In fact, they may not reflect his own opinions or his opinion on his opinion.
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