(Yes, it’s been a while since I blogged here. I’ve been busy with my podcast “Consider This”. However, I just had to come out of blogging semi-retirement to comment on this.)

Being argued today at the high court is King v Burwell, a lawsuit against ObamaCare (also known in some circles as the Affordable Care Act). This is a set of questions and answers that I imagine many people have about this.

Q: What is this case all about?

A: The crux of the issue is a 4-word phrase inside the massive law; “established by the States”. The subsidies supplied by the IRS, according to the text of the law, were to only go to those who applied for insurance via exchanges “established by the States”. If they used the federal exchange (HealthCare.gov), that is not “established by the States” so the subsidies wouldn’t apply.

That’s according to the plain language of the law, and according to Jonathan Gruber, a major influence in the creation of the law.

What happened was that the IRS gave out subsidies to those without state exchanges anyway. The lawsuit is saying that the government broke the law in doing so.

Q: What case is the government making?

A: That the rest of the law, taken as a whole, makes it clear that withholding subsidies from those who didn’t get their insurance via exchanges “established by the States” was not the intent.

Q: Does it actually say in the law somewhere, specifically, that those people should get subsidies?

A: Not that I’ve read. In fact, those articles I’ve seen that have written in defense of the subsidies (like this article by Robert Schlesinger in USA Today) don’t cite any other text that would buttress that opinion. Rather, they argue about the results if the subsidies were overturned.

To me, that sounds like they’re arguing that a law should say what the implementers want it to say, regardless of what the law itself says. That’s a precedent I don’t think we want to create. For example, if a Republican President vetoes legislation, and a Democratic Congress overrides that veto, is the President free to implement the provisions of the law he or she likes and ignore others? I’d say No, and I think those arguing for the ObamaCare interpretation would agree with me if the parties today were reversed.

The IRS did issue a ruling saying that they would, in fact, give subsidies to those in states without exchanges, but as far as I’m aware, the IRS is not part of the legislative branch.

Q: Chief Justice John Roberts is a jerk if he agrees to stop the subsidies.

A: That’s not a question.

Q: OK, wouldn’t John Roberts be a jerk if he agrees to stop the subsidies?

A: No. Recall that when ObamaCare was first argued at the Supreme Court, he did something few, if any, court observers predicted. He split the difference between the two sides and considered ObamaCare penalties to be a tax rather than some novel reading of the power of Congress to regulate interstate commerce. That was different than this case. In that case, he was ruling on whether Congress had the power to pass the law in the first place. In this case, the court is ruling on whether the law is what it says it is in the text.

Democrats praised Roberts as going beyond partisan politics, as if the measure of partisanship is whether or not you agree with Democrats. But Roberts had this warning after the first case, “We do not consider whether the act embodied sound policies. That judgment is entrusted to the Nation’s elected leaders.” Basically he was saying that, short of a constitutionality question, the Court is not the place to argue what should be done. But, in judging constitutionality, the Court is the place to argue how it should be done. Yes, an unconstitutional law can be thrown out, but you can’t argue that a law is unconstitutional just because you don’t like it. That’s a policy question. If Roberts votes against ObamaCare this time, it is for a fundamentally different reason.

I still think that ObamaCare is unconstitutional, because regulating commerce and forcing commerce are two very different things. But we are where we are.

Q: Shouldn’t the Supreme Court go with intent rather than letter? What about you “original intent” Constitution guys?

That’s a very good question. Let me start with an example of the two types of interpretation. The Second Amendment says:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Looking at just the word “infringed”, we know that there has been debate, even from the beginning, about what that really means. Some have argued that it means Congress can not pass any bill regulating guns in any way. Some have argued that we don’t use militias, so that infringement is OK outside that context. And there are arguments on the spectrum in between. But the idea that there were some instances where the right to keep and bear arms should not be infringed is something that is indeed true. The intent is at question; what are those instances?

Looking at just the word “not”, however, requires a different tact. You can’t really debate the intent of the word “not”. You can’t take that single word out and argue that the rest of the meaning of the Second Amendment stays intact (whatever you believe it’s saying in the first place). For this, the letter of the law is paramount.

What those arguing against this lawsuit are saying is that an exchange “established by the States” is exactly the same as an exchange not “established by the States”. It is not (and by that, I do not mean to say that “it is”).

Q: Wouldn’t this destroy ObamaCare and leave people with huge bills that the subsidies were going to pay for?

Those against this lawsuit would certainly like you to believe that chaos will ensue. It will certainly kick back the question to Congress (which is where legislative issues ought to be decided). In the above-mentioned USA Today article, Schlesinger says, “Hey, great – the deans of dysfunction would no doubt swing right into inaction”, which is to say that the same group of people he extolls for passing this is all of a sudden dysfunctional when they have to make changes he doesn’t like. I think you’ll find this is a common theme for liberal pundits.

In reality, however, there are many ways to handle this, and Avik Roy writing at Forbes brings some common sense to the argument that this will somehow destroy ObamaCare completely. (Hint: It won’t.)

Further, Republicans John Kline, Paul Ryan and Fred Upton, chairmen, respectively, of the House committees on Education and Workforce, Ways and Means, and Energy and Commerce, have an article in the Wall St. Journal with their plan to replace ObamaCare with one that would lower prices on a much larger scale with increased competition and letting you choose your own coverage (instead of some government mandate), while still providing many of the benefits of ObamaCare (subsidies for those who need it, eliminating caps, etc.), all without upending an entire industry.

Thanks for reading this far. If you have other questions, please put them in the comments below. I’m no expert, but I’ll try to answer them.

Filed under: DougGovernmentHealthcareJudiciary

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