“When I use a word it means just what I choose it to mean —neither more or less.”
The
Obamacare war is not over
The Asheville Citizen-Times
LeRoy Goldman GUEST COLUMNIST
2:01 p.m. EDT June 26, 2015
Last
Thursday, President Obama’s signature piece of legislation,
Obamacare, survived at the Supreme Court — yet again. Another
crucial battle has been won by the president. But the outcome of the
war over Obamacare remains in doubt. Indeed, the administration’s
victory at the Supreme Court may well turn out to be a blessing in
disguise for those who oppose the law, a majority of the American
people.
In
2012 the constitutionality of the act’s centerpiece, the individual
mandate, was challenged in a case, NFIB v. Sebelius, decided by the
Supreme Court.
That
June the court ruled that the mandate was unconstitutional under the
Commerce Clause, but that it was constitutional as a tax. Chief
Justice John Roberts joined the four conservatives on the court
respecting the Commerce Clause, but then turned 180 degrees and
joined the four liberals on the court to save the Affordable Care Act
by deeming the mandate to be a permissible tax.
The
ACA survived, but the onslaught against it did not abate. Comes now
the current case the Supreme Court decided last week, King v.
Burwell. This case does not challenge the constitutionality of
Obamacare. Rather, it is a case of statutory interpretation that
turns upon just four words in the statute, “established by the
state.” The question before the high court was whether in order for
a person to receive a subsidy in the form of a tax credit from the
Internal Revenue Service to help pay for his health insurance under
Obamacare the state had to have established the exchange. This is
vital because 34 states have refused to establish exchanges. In those
states the exchanges were established by the federal government.
King’s
lawyers argued that in those 34 states the subsidies are
impermissible under the statute, and so too are the IRS regulations
that permit them. The administration’s response to the court
basically was, “nonsense”. They argued that the subsidies in all
states were legal and necessary in order for the act to work, as they
argued, Congress intended.
Both
sides understood that terminating the subsidies in so many states
would likely precipitate a death spiral for Obamacare. That’s
because, absent subsidies, many individuals would drop their
insurance. Those remaining would be older and sicker, and that would
force sharp increases in insurance premiums that would quickly
destabilize the entire system.
Chief
Justice Roberts, along with Justice Anthony Kennedy, joined the four
liberals on the court to hand the administration a 6-3 victory,
essentially arguing that the words, “established by the state,”
when taken in the context of the entire law mean “established by
the state or the federal government.”
On
May 12, 2015, Justice Antonin Scalia, speaking before the Phoenix
Federalist Society said, “the most important element of a good
dissent is a really stupid majority decision.” He knew then what we
know now. Scalia’s dissent in King isn’t just good, it’s
scathingly good. In it he dismembers Roberts’ majority opinion.
Scalia
states, “Words no longer have meaning if an exchange that is not
established by a state is ‘established by the state.” Regarding
the possibility of a Congressional drafting error, Scalia says, “it
is entirely plausible that tax credits were restricted to state
exchanges deliberately in order to encourage states to establish
their own exchanges. We therefore have no authority to dismiss the
terms of the law as a drafting fumble.”
And
then Scalia addresses how the court’s decision undermines the
doctrine of separation of powers. He says their decision, “reflects
the philosophy that judges should endure whatever interpretive
distortions it takes in order to correct a supposed flaw in the
statutory machinery... More importantly, the court forgets that ours
is a government of laws and not of men.”
The
court has unwisely chosen to permit the IRS regulations respecting
subsidies to rely upon the illogic of Humpty Dumpty who said, “When
I use a word it means just what I choose it to mean —neither more
or less.”
In
the 2012 Obamacare decision, Roberts said, “It is not our job to
protect the people from the consequences of their political choices.”
Yet that is precisely what he has done in this case.
Look
for it to have a boomerang effect. Now the Republicans in Congress
will not have to try to fix Obamacare had the court ruled in favor of
King. Instead it will become an all or nothing, zero-sum game,
determined by who wins in 2016.
LeRoy
Goldman lives in Flat Rock. He was a member of the federal
government’s senior executive service for many years, and can be contacted at: EmailMe
