With Thursday’s US Supreme Court decision in King v Burwell, Chief Justice Roberts writing for the majority cemented the Affordable Care Act as the law of the land. Oh there will still be plenty of legal challenges to it, and there will be an attempt to replace it should a Republican occupy 1600 Pennsylvania Ave. in 2017; but for all intents and purposes, the individual and employer mandates, and now the subsidized federal health insurance exchange are now in concrete.
Frankly it should be called Robertscare as the Chief Justice has done more to enshrine the law than anyone else. In fact, the Supreme Court Justices may be the only ones who actually read the law. After all, we know from former Speaker Pelosi that congress had to “pass the bill to find out what’s in it.”
Given that members of congress didn’t actually write the bill, it is impossible to know what congresses actually intended. We only have the words that were put on paper. In the case of King v Burwell, the words at issue are “established by the state” exchanges are eligible for the federal subsidy. That means health insurance purchased on healthcare.gov, the federal exchange would not be eligible for a subsidy, only those policies sold by a state run exchange would receive the subsidy. Those words seem pretty clear to me. A state exchange is an exchange established by a state. The federal healthcare exchange was established by the federal government. Yet the Roberts Court decided, no, state and federal meant the same thing. At least in this case.
In legislative parlance, there are no two more powerful words than “shall” and “may”. One is directive and one is permissible. Polar opposites. But perhaps the Court would find them to be synonyms now.
It’s hard for me to imagine the court construing, or confusing state and federal governments in any other instance. But who knows. Roberts wrote in his opinion that the law had, “more than a few examples of inartful drafting.” I dunno, when there is poor drafting in your Iowa legislature they offer amendments or bills to fix it – because the words in the bill are the law, not the intentions of the drafters. Whoever those drafters may be…
Sorry, but a side bar here. I am harping on who drafted this bill because it clearly was not actual elected officials, but consultants, and staffers and people like Jonathan Gruber who proclaimed that passage of Obamacare relied upon the “stupidity” of the American people. Members of congress, even the President, thought they knew what was in the law, but as we know from experience they did not. No keeping your existing plans. No keeping your doctor. So what the crafters intentions were, and what words were put in the bill may have no resemblance to one another.
But Justice Roberts and the Court have devined the intention. “It is implausible that Congress meant the act to operate in this manner,” they wrote. Well, uh, they meant for you to be able to keep your health insurance and doctor if you like them…. But that’s not what they wrote.
Justice Scalia hit the nail on the head when he wrote in his dissent “words no longer have meaning if an Exchange that is not established by a State is established by a State.”
I know my liberal friends are pleased by the ruling, but they ought to be concerned – we all ought to be concerned – by a Court that interprets what Congress intended rather than what it wrote into law. I know there are many who believe the Constitution is a living breathing documents and changes over time. But we aren’t talking about that. This is a law written just a few years ago. Congress could write and make changes to it on a daily basis. If you accept that the Court can interpret the intention of congress, regardless of what they wrote, than don’t be too shocked or appalled when the Court interprets something in a way that does not benefit your viewpoint. The ends do not justify the means.
This is what troubles me the most – we depend on a politically impartial court in our system of governance. It should not matter if one person, or six million people lost their federal subsidy. If that is not what the law says, that is not what the law says. It is up to congress to then fix the law. In an ironic twist, that is exactly what the leading proposal from the GOP Senate would do – reinstate the subsidies for those who purchased their insurance on a federal exchange for a period of time.
There are plenty of times I’ve disagreed with a court’s opinion, but understood the reasoning because that they were bound by the words of law (I’ve recently gone through that here in Iowa) but in this case I’m disappointed and concerned about a court that decides it knows what the writers intended, even if it isn’t what they wrote.
Add the Roberts Court and the enshrinement of Obamacare, err Robertscare to the list of unintended Bush legacies.