The Twisted, Tortured Path Obamacare Took Back To The Supreme Court

The stakes were high three years ago when the Supreme Court heard NFIB v. Sebelius, the case challenging Obamacare’s individual mandate and threatening to undermine President Barack Obama’s signature policy achievement. For three days, attorneys argued about some of the most important controversies in constitutional law –- the boundaries between federal and state power, the limits of congressional authority, the very meaning of personal liberty. Had the court ruled in favor of the lawsuit, the Affordable Care Act might not have extended insurance to millions. In the end, it survived thanks only to a 5-to-4 majority, with Chief Justice John Roberts, a conservative, reportedly switching his vote during deliberations.

The stakes will be high again on Wednesday, when the court hears King v. Burwell, although lofty constitutional principles are not the issue this time. The case is largely about how to interpret four words in the Affordable Care Act statute. The plaintiffs claim that those words effectively forbid the federal government from subsidizing private insurance in about two-thirds of the states. The outcome of the case should have no effect in places like California and Kentucky, where officials have embraced Obamacare and set up their own infrastructure for helping people to purchase insurance. But in the rest of the country, a victory for the plaintiffs would cut off financial assistance for those seeking to buy coverage. Millions of people would lose their health insurance altogether. State insurance markets could fall into chaos.

The nature of the dispute isn’t the only way this latest Obamacare case is different from its predecessor. While the lawsuit in NFIB called upon the Supreme Court to issue new philosophical doctrines, or at least revive old ones, the brief held together well. The argument was radical, sure, but it was intellectually formidable. The lawsuit in King is another story. The plaintiffs are asking the court to read the Affordable Care Act in a blinkered, pinched way that defies not just legal conventions but also common sense. And they are justifying this request based on a theory of legislative history that is, at best, selective, and at worst, deliberately misleading.

This doesn’t mean the case can’t win at the Supreme Court. The plaintiffs already persuaded three federal judges, one at the district level and two at the appellate level. All were Republican appointees, just like five of the justices who will sit in judgment of the case on Wednesday.

‘An Unintended Consequence’ — Or The Plan All Along?

The idea that Obamacare’s tax credits were dependent on state action did not attract attention until late 2010, when a South Carolina attorney, going over the statute, discovered what he admitted at the time might be an “unintended consequence” of the specific wording Congress had chosen.

Under Obamacare, people without access to employer-provided insurance or coverage from existing government plans like Medicare or Medicaid can buy private insurance through so-called “exchanges.” To help these people pay premiums, the federal government offers tax credits that operate like a discount -– and can be worth hundreds, even thousands of dollars a year. States can choose whether or not to build and run their own exchanges. When a state doesn’t take action, then, according to the law, the secretary of health and human services must build the exchange.

One of those conventions is that judges should read sections of laws not in isolation, but in context. In King, that means looking beyond “established by the State” to the other sections of the law -– starting with the section on the federally run exchanges, which commands the secretary of HHS not just to “operate such exchange” when states fail to act, but also to “take such actions as are necessary to implement such other requirements.” To read “established by the State” and ignore the other passages is a bit like using an instruction book to build a piece of furniture and then refusing to turn the page – and then standing, dumbfounded, as your new coffee table lays only partly assembled before you.

The other convention is about ambiguity –- and how courts should treat it. In 1984, in a case called Chevron v. Natural Resources Defense Council, the Supreme Court created a two-step process for interpreting statutes. First, judges should determine if a law has clear, unambiguous meaning; if the meaning is not clear, then judges are supposed to allow federal agencies to make any “permissible” interpretation. Under Chevron, then, the government need only show that its interpretation of a murky law is one plausible interpretation — not that its interpretation is the only plausible interpretation. The mere existence of sections calling upon the federal government to build exchanges would seem to create ambiguity — enough to make this a straightforward case.

King’s supporters frequently claim that the process of enacting Obamacare was somehow illegitimate -– that advocates used parliamentary tricks to push the law through Congress and they are now deceiving the public about its intent. But in the fourteen months it took Obama to get the Affordable Care Act through Congress, it was subject to as much media and political scrutiny as any statute on the books today. It became law because a majority of the House of Representatives and a super-majority of the Senate voted for it, and a president, duly elected on a promise to enact such a plan, signed it.

If Obamacare’s opponents wish to get rid of the law, they can do it the same way -– by electing majorities in Congress and a like-minded president, and then passing a bill of their own. But that’s proven very difficult. Just as conservative columnist Bill Kristol once warned Republicans, dislodging a working universal health care scheme is almost impossible politically. It would mean taking insurance away from millions of people, most of whom have no other way to get it.

With this lawsuit, Obamacare’s opponents are asking the court to do their work for them. They tried the same gambit in 2012, only to come up one vote short. Will they succeed this time? On Wednesday, we’ll start get some idea.

The Huffington Post