Lewis Carroll, who wrote Alice in Wonderland and Through the Looking Glass, would’ve loved the anti-Obamacare case that was argued today in the U. S. Supreme Court.
In the Looking Glass story, Humpty Dumpty says to Alice, “When I use a word, it means just what I choose it to mean – neither more nor less.” And in today’s hearing, the foes of Obamacare parsed four statutory words and insisted – despite all rational evidence to the contrary – that those words sow the seeds of the law’s destruction.
This case, King v. Burwell, would be dismissively laughable if the stakes weren’t so high. The ruling is expected in June. If five judges say yes to the health reform foes, roughly eight million Americans will lose their health coverage. Or, as Republicans would call it, “good news.”
The health reform law offers federal tax subsidies to people who can’t afford to buy their own coverage in the newly-created marketplaces (also known as exchanges). One section of the law, 36B, refers in passing to exchanges “established by the State.” According to the law’s foes, those four words mean only one thing: If you’re buying coverage from a state exchange, you can get subsidized – but if you’re buying from the federal exchange, you’re out of luck.
Forget Lewis Carroll; now we’re into Joseph Heller Catch-22 territory: Most of the Republican-run states have refused to set up Obamacare exchanges. The folks in those states who’ve sought coverage have instead enrolled on the federal exchange. But according to the foes’ conservative lawyers (who are financed in part by the Koch brothers), federal exchange customers aren’t entitled to subsidies. Which means that if they can’t afford it, they gotta lose it. And if those estimated eight million people lose it, the whole structure of Obamacare collapses like a bad souffle.
There’s only one problem with the foes’ argument. It’s a crock.
If the high court judges do their job – if they study legislative intent, and view the entire law in context – they’ll easily conclude that federal customers, as well as state customers, were deemed eligible for tax subsidies. Democrats pushed Obamacare to passage; it is magical thinking to claim (especially without a scintilla of legislative evidence) that Democrats ever intended to deny subsidies to needy Americans enrolled on the federal exchange.
Quite the contrary, in fact. A key provision of the law explicitly says that if a state refuses to set up its own marketplace, the feds will “establish and operate such Exchange within the State.” And when the high court upheld Obamacare in 2013, none of the dissenting judges suggested that the federal customers were ineligible for help.
The foes’ case hinges on a desperate game of semantics. All the judges need to do is read the law in context – as they are sworn to do. As Antonin Scalia has written in the past, “the words of a statute must be read in their context, and with a view to their place in the overall statutory scheme.” As former Reagan solicitor general Charles Fried urges the court, in an amicus brief opposing the Obamacare foes, “(R)ead the words of a statute in context – not, as some critics suggest, in isolation.”
(By the way, the plaintiffs in this case – the average citizens enlisted by the lawyers to supposedly illustrate the burdens of Obamacare – are a joke. The two guys are vets, and thus eligible for free vet health care. Another is a woman whose income is so low that she’s legally exempt from enrolling in Obamacare. Another is a woman who’s apparently so confused about the case that she told a reporter, “I don’t like the idea of throwing people off their health insurance.”)
Anyway. There once was a time when Congress fixed its semantical glitches – via passage of what’s called a “technical corrections” bill. If it was deemed necessary, four words like established by the State would be tweaked, end of story. But Congress is too polarized and dysfunctional to do the simple things, so instead we get spectacles like King v. Burwell, bankrolled by ideologues who have been thirsting to take down Obamacare since its inception. (Best quote, from a 2010 confab: “This bastard has to be killed as a matter of political hygiene.”)
And if the high court rules for the foes, and eight million lose their health coverage because they can no longer afford it, congressional Republicans have no policies on tap to help those people. Natch. They say they’re working on something, but they’ve been saying that off and on for years. It’s far easier to simply dwell in the realm of magical thinking.
As a Lewis Carroll character once said, “Imagination is the only weapon in the war against reality.”