Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.
But the fact that the suit is ridiculous is no guarantee that it won’t succeed — not in an environment in which all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law.
To understand the issue, you need to understand the structure of health reform. The Affordable Care Act tries to establish more-or-less universal coverage through a “three-legged stool” of policies, all of which are needed to make the system work. First, insurance companies are no longer allowed to discriminate against Americans based on their medical history, so that they can’t deny coverage or impose exorbitant premiums on people with pre-existing conditions. Second, everyone is required to buy insurance, to ensure that the healthy don’t wait until they get sick to join up. Finally, there are subsidies to lower-income Americans to make the insurance they’re required to buy affordable.
Just as an aside, so far this system seems to be working very well. Enrollment is running above expectations, premiums well below, and more insurance companies are flocking to the market.
So what’s the problem? To receive subsidies, Americans must buy insurance through so-called exchanges, government-run marketplaces. These exchanges, in turn, take two forms. Many states have chosen to run their own exchanges, like Covered California or Kentucky’s Kynect. Other states, however — mainly those under G.O.P. control — have refused to take an active role in insuring the uninsured, and defaulted to exchanges run by the federal government (which are working well now that the original software problems have been resolved).
But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. Furthermore, the consequences if the suit were to prevail would be grotesque. States like California that run their own exchanges would be unaffected. But in places like New Jersey, where G.O.P. politicians refused to take a role, premiums would soar, healthy individuals would drop out, and health reform would go into a death spiral. (And since many people would lose crucial, lifesaving coverage, the deaths wouldn’t be just a metaphor.)
Now, states could avoid this death spiral by establishing exchanges — which might involve nothing more than setting up links to the federal exchange. But how did we get to this point?
Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen. So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.We live in the Age of Lies, in which we face our enormous challenges by lying to ourselves and each other. Some do it for free, some are handsomely paid, but all do it because you cannot indulge in denial without lies to bolster your fake but far more self-serving version of reality. McArdle:
I’m not going to prognosticate about how they will rule, and I will point and laugh at any journalist who tries to punditsplain to the Supreme Court that they can’t, or conversely, that they must, a class of article that you might categorize as “predictive exhortation.” The actual forecast value of these sorts of articles is pretty low; it’s at best reminiscent of high school student government meetings. The Supreme Court’s gonna do what the Supreme Court’s gonna do, and they’re probably not much interested in my expert legal analysis.
It is safe to say, however, that the government is going into this round with a significantly weaker hand than it had even a few months ago. The law remains unpopular, and no, I don’t want to hear your explanation about how actually it’s really popular if you look at the polls right. 1 The past election created unified control of Congress, which means there’s a reasonable chance of repealing or fixing the law in the face of an adverse ruling -- though not easily, and only over the screaming protests of President Obama and the Democrats, who will be outraged at what Republicans will demand. Also, since the initial Halbig ruling, evidence has emerged that at least one pro-Obamacare reporter, Jonathan Cohn of the New Republic, believed during the negotiations that the subsidies would only be available on state exchanges. The argument that no one reasonable can ever possibly have ever thought that this was the case has basically collapsed, though that won’t necessarily stop the administration from making this argument anyway.
That still leaves this far from a slam dunk.The Petulence Effect strikes again, as McArdle doesn't want to hear your explanation of how "liberal" has become so smeared that people will only vote for them when the word isn't attached.
We can no longer say that the truth will prevail. Sooner or later the 99.01% percent will realize that they must band together not for a win but for survival.