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Supremes find an acorn

Uploaded: Jun 25, 2015

The Supreme Court today rejected gotcha politics by a vote of 6-3. It turns out that the ACA/ObamaCare means what it forever intended, and health care subsidies may be made via coverage acquired on either the federal or state exchanges. In any but these most politically fraught times, this ruling would've been obvious to any first-year law student.

I am relieved that this bunch of Supremes got it right, and I am also concerned that I have to feel relief.

The case and controversy revolved around a single sentence in the massive, thousand-page bill, passed six years ago. It indicated that subsidies would be paid per coverage obtained on exchanges created by the State. Other parts of the law provide for the feds to create an umbrella exchange, for use by folks whose states cannot or refuse to establish their own such marketplaces. That's how just about everybody understood it.

Locally, the exchange is known as Covered California, but some 29 other states have relied on the federal version ?, the one that had such a disastrous roll-out in 2013. States have gone with the feds either because their scale was too small, or more often because GOP Governors and legislatures have been distinctly hostile to anything associated with the "O" word.

So the question before the Court was: may subsidies Only be paid via state exchanges ? or may the federal exchange coverages, that do the same thing, also qualify? The Administration had no fall-back position ? both it and the healthcare insurers who have benefitted mightily from all this free new business would be out-of-options had the Supremes gotten it tragically wrong.

As such, Mr. Obama played chicken with the Court, throwing his steering wheel out the window at the podium as the opposing Parties headed for the collision. The coverages of millions of Americans who signed-up on were in peril, as a sophistic ruling that ignored the obvious intent of the statute could have thrown those coverages into disarray.

Would that be such a bad thing? As columnist/Nobel economist Paul Krugman opined earlier this week, the ACA has performed exactly as advertised and intended, despite resolute, rearguard red-state opposition. Using as a benchmark the RomneyCare Massachusetts plan's decade-long experience that has reduced its uninsured rate to about 5% of that state's population, ObamaCare has dropped the uninsured rate from 17% to 10%, and to 7.5% in (mostly blue) states that have concurrently expanded Medicaid coverage. It's estimated that about half of the remainder are undocumented, and thus ineligible under the ACA.

Dr. Krugman concludes: "(N)otice that this been achieved while the deficit has been shrinking and we've been having the best job growth since the 1990s. Folks, this program works; not perfectly, but every single claim by its opponents ? it won't reduce the number of uninsured, it will cause soaring rates, it will explode the deficit, it will kill jobs ? has been proved false."

Now frankly, I don't think the opponents ever really believed in those arguments ? they were make-weights for the real concern: that ObamaCare must be stopped because it will work pretty well, and people are going to like it (just like they do for Medicare and other organized approaches in every other First World country).

So, yes it would've been so bad. I don't have poignant stories about life-saving interventions, but they're out there, aplenty, and more like them were put at risk in this case.

What the Court majority concluded, per its case syllabus is that, if petitioners' argument succeeded, "(t)he combination of no tax credits and an ineffective coverage requirement could well push a State's individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well."

That's courtspeak for the fact that when you consider the Act as a whole, this was an unfortunate grammatical omission, common in the law and easily resolved (ahem, fair warning: commenters who disagree had better be Boy Howdy sure They get Their grammar right ;-) ).

As the Court sometimes does when it agrees to hear a case 'improvidently,' Mr. Justice Roberts for the majority did attempt a face-saving gesture by characterizing the petitioners' pettifoggery as a strong plain-meaning argument. Except it never was. Advocates must always guard against over-believing in their own considerable facility to pass-off semantic sow's ears as formal wear. This argument was always over-technical and plainly at-odds with the statute's purpose, as well as just plain good sense. The Justices should not have put us all through these months of unnecessary dread, itself born of too many obvious politically doctrinaire rulings.

So, yeah, I AM relieved. The ACA is no panacea, but it is far better, saner and more humane than the previous unmanaged alternative. Now, if only they can get the same-sex marriage case right tomorrow (I'm predicting essentially the same 6-3 margin, with Roberts concurring on a statutory basis, as I'm postulating that he understands the game is over), it'll have been a good session.

It just shouldn't have to be this hard to do the right thing.
What is it worth to you?


Posted by Shawn , a resident of Foothill High School,
on Jun 25, 2015 at 12:26 pm

The right thing would have been for them to write the law correctly and not try to coerce the states into setting up exchanges, which is why it was specifically written with the word "state". Jonathon Gruber, one of the architects of the awful plan, openly admitted that the language was there intentionally. This story is very misleading by describing the language in question simply as "a single sentence in a massive, thousand-page bill." Reference to state exchanges is made in at least 7 different sections and very clearly sets up differences between state and federal exchanges. I would urge people to read the entire decision as well as Scalia's dissent. Both can be found here:

Web Link

It is another sad day for our country when activist judges re-write legislation. Scalia is correct when he said that "Words no longer have meaning if an Exchange that is not established by a State is ?established by the State.?

Posted by Tom Cushing, a resident of another community,
on Jun 25, 2015 at 3:23 pm

Hi Shawn: "Activist judge" is an interesting term that has become a blanket criticism for a jurist on either end of the spectrum, whose holdings somebody disputes. It's one of those soundbite shortcuts that has lost much of its meaning.

But even if we apply the term traditionally, to judges on the liberal side, I have to wonder about its usage here. The Chief Justice, who wrote for the majority, is a Bush2 appointee whose conservative credentials have been well-established since he was a White House counsel during the Reagan years. His righty chops have been on ample display during his tenure, unfortunately to my way of thinking.

The fact that even he couldn't stomach the Petitioners' argument reflects quite harshly on the argument, more so than on the jurist. I think he'd be quite surprised at your characterization of his jurisprudence.

Posted by Peter Kluget, a resident of Danville,
on Jun 29, 2015 at 9:51 am

Anyone who has ever been involved in litigation over the meaning of legislation - as I have on many occasions - has encountered portions of bills which are ambiguous or seemingly contradictory to the overall thrust of the legislation. People argue both sides every time. But a consistent principle involved in the resolution of these common issues is that the interpretation of individual words and sentences should be consistent with the clear purpose of the whole act.

The Supreme Court did nothing unusual or "activist" in its ruling. As much as I might have enjoyed a different ruling (and I was rooting for the opposite outcome, for reasons of my own) what the majority did in this case is absolutely routine. Claims to the contrary are simply ideological nonsense, fueled by ignorance.

Posted by Sue Premie, a resident of Birdland,
on Jun 29, 2015 at 10:08 am

Well yeah, Pete, but are such claims argle-bargle? Jiggery-pokery? Applesauce?

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