The Obamacare war is not over

“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