Thursday, June 25, 2015

King v. Burwell

This is turning out to be somewhat of a shitty day.  First, the weather forecast for the weekend's events is not good.  Well, not good is probably too good.  The forecast is downright shitty.

Next and probably more depressing was today's Supreme Court decision (6-3) in King v Burwell, or the latest Obamacare verdict.  The decision can be found here.

I urge you to read it, both the Chief Justice's majority opinion and Justice Scalia's dissent.

There is talk all over social media about how this is a good decision for the GOP, that they get to keep the bleeding sore of Obamacare as an issue but don't have to do anything that they didn't want to have to do to fix it.  As a matter of naked politics, I understand that.  But I don't want to think about naked politics today.

I want you to read the Chief Justice's tortured, Orwellian rendering of our shared tongue, which Justice Scalia described thusly: "This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B. Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” "

And then contrast it with Justice Scalias words, for example: "The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so."

Not only has the Supreme Court suffered today--suffered in having once again become a legislative organ rather than a judicial one--but our common understanding of the English language has been done great violence, when a learned jurist with a straight face tells us that clear and and unambiguous language is not nearly so clear nor as unambiguous as one might think.

I read a New York Times blog piece (which I cannot unfortunately find right now) an hour ago in which the author asked the question, "why would states retain their exchanges in light of this decision?"  What a good question.  But not only is it a good question, but it is an OBVIOUS question.  A question that six Supreme Court Justices should have more deeply considered when they decided that not only was there no meaning to the plain language of the statute, but that there was no rationale behind the creation of separate federal and state exchanges.  But there was. They were created in order to shift costs to pliable states in order to keep the federal bill down.  To provide incentives to states to do so, specific tax credits were legislated that applied to those who--here it comes--obtained their insurance on a state exchange.  Our friend Jonathan Gruber made it very, very clear that this was what was behind the legislative decision to create separate exchanges.  Now I know modern jurists of a certain ideology like to get at "meaning and intent" but the in this case, not only was the plain language interpretation clear and unambiguous, but the legislative history had enough doubt in it (see Gruber, J) to render the plain language interpretation unassailable.  One would think.

But we don't live in those times. We live in times in which the Chief Justice--providing high cover for Justice Kennedy--have decided that their job is to save us from ourselves, that Congress is incapable of legislating for us and that the nation cannot bear the potential for chaos.  Not that there would BE chaos, mind you, just people not getting subsidies that they thought they were going to get.  A matter of relatively quick legislative action for states or the Congress, but that is not now required, as the Supreme Legislature has ruled.

This is a dark day and I am in a foul mood.


"The Hammer" said...

King v Burwell? The Ruling Elite v The Constitution more like it.

TigerHawk said...

My own view is that the case and the argument over its result are mostly political theater. It is hardly the worst example of statutory or Constitutional interpretation in the history of the SCOTUS. Beyond that, however, I think its practical effects are far less than the hanky-twisters are worried about. There was a "face-saving" work around that probably would have nullified the consequences of the case had it been determined otherwise: The Dept of HHS could have issued a regulation that defined "established by a State" to include a mere link on the State's web site to That would have put the governors of the states with no exchange in a terrible spot: Deny *federal* subsidies to many thousands of their own constituents because they won't put up a mere link? Not gonna happen. So I think this case and the controversy around it is pretty much manufactured nonsense, and conservatives (in particular) have fallen for it like a ton of bricks. The right answer is for the next president and the next Congress to substantially revise the law in various respects. Now *that* will be an interesting (and real) debate.

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