mead cohen berger shevtsova garfinkle michta grygiel blankenhorn
ACA Fail Fractal
Haste Makes Obamacare Waste

In the end, it may be a “drafting error” that kills the Affordable Care Act. The Supreme Court has agreed to hear King v. Burwell, a case that challenges the legality of federal subsidies for insurance purchased in the federal exchange. When the Affordable Care Act was passed, states were given the option of creating state-run exchanges in which their residents could purchase insurance. Thirty-six states chose not to. The federal government then had to set up its own exchanges for them, offering subsidies in those states for qualifying individuals.

But the text of the law only empowers state governments to provide subsidies—not the federal government. King challenges the right of the federal government to offer subsides in those 36 states, and if the Court rules against the government, everyone in those states currently getting subsidies will become ineligible for them, effectively gutting the ability of the ACA to function at all in those states. More, via the NYT:

Representative Nancy Pelosi, the House minority leader, said the court’s move was a surprise. “It’s troubling that they would even consider this,” she said. “The language is very clear. The intent of Congress is very clear.” […]

The case the Supreme Court agreed to hear comes from Virginia. It was brought by four people who said they did not want to be subject to the law’s requirement that they buy insurance or pay a penalty. If it was not for the subsidies, they said, they would have been eligible for a hardship exemption.

Pelosi wasn’t the only one surprised the Court agreed to hear the case; even to hear it means that the Court thinks the challenge has some merit, no matter which way the ruling eventually goes.

But neither Democrats nor Republicans should be surprised. The law was poorly written, in part, because Democrats pushed it through quickly, after Scott Brown’s election in Massachusetts threatened their control of the Senate. The hastiness of that process all but ensured some error like this would surface. Republicans for their part have warned state governments to refuse to set up exchanges from the moment the law was passed—and that approach could wind up working for them if the Court decides their way in this case.

It’s not clear how this case will be decided. It will be argued before the court February or March 2015, and decided in June 2015. Chief Justice Roberts will likely be a key swing vote, just as he was in National Federation of Independent Business v. Sebelius, the decision that upheld the individual mandate. But if the case goes against the Democrats and the administration, they will have only themselves to blame.

Features Icon
show comments
  • GilZimmermanJr

    This was NOT a mistake. It was intentional. The folks who wrote this monstrosity decided that the issue would drive more states to set up exchanges. They were wrong. The Executive Branch cannot rewrite the legislation through administrative fiat. THAT’S the important issue here and, I believe, THAT is why the SCOTUS decided to take the case. It is very, very fundamental.

    • Corlyss

      Exactly. As they say in sw design, it’s not a fault, it’s a feature. It would be nice if all the statements made by administration and Congressional supporters who flogged the fact that it was intentional. If the Justice who wrote the Roe v. Wade decision could take “judicial notice” of all the independent research he did on conception and abortion one summer preparing to write the court’s decision, why couldn’t the court take “judicial notice” of all that verbiage devoted to this feature?

  • stan

    “What’s important to remember politically about this is
    if you’re a state and you don’t set up an exchange, that means your
    citizens don’t get their tax credits”

    • stan

      Gruber now says he repeatedly “misspoke”. Of course he also admits that lying is crucial to getting the law implemented.

      • Corlyss

        The Left calls it “Lying for Justice.” I never heard that term before reading Ben Wattenberg’s biography of his years as a political operative. He appeared on a talk show with Paul Erlich, the climate doom-sayer (regardless of whether he’s talking about the pending ice age or AGW) and over-population blatherer. Later in the green room, Wattenberg called him on his outrageous lies during the interview. Erlich was unapologetic, covering his nakedness with the claim that the lies were justified for the sake of Justice.

  • Boritz

    It’s entertaining to hear liberals with ivy league law degrees arguing Cumoooooonnnn! Everybody knows how we wanted this to turn out! That’s all that should matter!

  • Boritz

    You remember that episode of the X Files where people would tell their wish to a genie and the genie always found a loophole in the way they worded their wish? That was awesome.

  • Corlyss

    Well, given SCOTUS’ round-bottomedness vis the Pres and Congress since the court-packing scare in the 30s, I am not hopeful it will do what it should have done when it determined the individual mandate was illegal unless it was a tax, and then failed to send the law, or at least that feature of it, back to Congress for processing IAW the Congress’ rules regarding tax creation. IT’s for sure they avoid any tough decisions they can possibly wiggle out of.

    • FriendlyGoat

      It’s hard to imagine John Roberts relegating himself to buffoon status by letting this all proceed in the first case, letting all the subsidies go into motion for 18 months 1/1/14-6/30/15, and then say “Gee, I never thought about that state-exchange thing”

      My guess is they took this away from the Court of Appeals, not to overturn it, but to substitute their own opinion language in place of what the more-liberal panel would have said. Then again, your ole buddy, John, might just make such a mess of this that he invites Hillary to become president.

      • Fred

        CATHOLIC! Say it ain’t so! They’re no doubt taking secret orders from the Pope, probably through the microchips the aliens who really run the Church put in their brains.

        • FriendlyGoat

          If these guys were actually taking orders from the spirit articulated by Pope Francis, we’d have no real problem. Our problem is that they’re not. They are taking orders from the incorporated segments of society and making almost all of their decisions accordingly. This should be a profound embarrassment to real church people, and the more WE ALL TALK ABOUT IT, the better.

          • Fred

            Well make up your mind. Are they making “bad” decisions (defined, of course, as decisions you don’t like) because they have Catholic blinders on or because they’re bad Catholics? If you don’t like their ideology just say so. Blaming their Catholicism makes you sound like a bigoted Know-Nothing. Also, I would lay heavy odds that you would have very little objection to five justices making all the decisions if those decisions were liberal. You are quite obviously a knee-jerk “progressive” who cannot see past his (her?) ideological blinders. That’s bad enough, but combined with your anti-Catholic bigotry, it is truly obnoxious.

          • FriendlyGoat

            I cannot be anti-Catholic while delighted with Pope Francis as a world leader, as I am. (I might be a bit against some of the Catholics who are griping about Francis, but that’s all a different subject.)

            The whole goal in the realm of American SCOTUS decisions is to divide Scalia, Thomas, Roberts, Alito and Kennedy in their decisions. The more that Americans vocally notice that they are five guys from ONE gender, ONE political party and ONE church making EVERY decision for eight years running, the more likely that is.

            As for killing ACA subsidies for benefit of Republican politics, that would be a very un-Catholic decision, if it happens. Or——IF—-as you might be arguing, the majority of American Catholics somehow want ACA killed—-THEN we might knock that whole church for having gone problematic and stupid. As I said, there are many ways to argue this.
            The idea is divide, divide, divide those five. There are four other justices with better leanings with whom one or more of the five could side from time to time.

          • Fred

            I hope and pray that your delight in Pope Francis will be shattered at some point. But even if it is not, one man cannot destroy an institution that has existed for over a millennium and a half and against which God has promised the gates of Hell will not prevail. Your obsession with the SCOTUS justices’ race, gender, and religion still strikes me as bigoted. Why is it impossible for white, Catholic, males to make decisions beneficial to those who are not white, Catholic, or male. Was Brown v the Board decided wrongly because it was decided predominantly by white men? As I said, you can’t seem to get past knee-jerk “progressive” identity politics. As for killing ACA subsidies being “un-Catholic” the only response is horses**t. Catholic social doctrine requires care for the poor. How that care is accomplished is a prudential matter on which reasonable people of good faith can disagree. Again, if you could see through your “progressive” blinders, you might realize that not everyone who disagrees with you is an evil oligarch or an ignorant stooge of such oligarchs. Reasonable, and to me quite convincing, arguments can be made that the ACA is a disaster that, like most liberal policy, will end up harming most the very people it is designed to help. As for your injunction to “divide, divide, divide,” would you be as anxious to divide if the five were liberals and the four were conservatives? Answer honestly.

          • FriendlyGoat

            1) The five problematic justices are not all white. Remember Clarence Thomas?
            2) Pope Francis is asking his Church to see the real Jesus and act on real evangelism plus have a concern for the poor worldwide. There is a growing cohort of Catholics in this country who are absolutely rebelling against that focus, justifying their reluctance with the hot-button issues Francis has correctly identified as things which do not need to be talked about ALL THE TIME, (to the exclusion of everything else).
            3) As for you, it’s hard to imagine WHY you would want any non-Catholic’s delight with a pope to be shattered.
            That’s really one of the most defensive nuggets of non-wisdom I’ve ever heard. Net, net, I’m a fan of your actual spiritual leader and you think the spirits of Roberts/Alito/Scalia/Thomas/Kennedy are something more like the “real” church. Good grief.
            4) To your last question, YOUR side would most certainly be trying to divide five liberals dominating the Court if that were the case. I wouldn’t like it, but I would expect nothing less. Then there is the matter of whether the decisions are good or bad—-aside from just left and right. I’m of the opinion we’ve been getting a lot of bad ones. Anything which empowers corporations over people, for instance, is in violation of the original constitution. We all sort of “know” that, even your people.

          • Fred

            1) There’s a neat bit of sophistry. Exclude race from my comment and the argument still stands. Your obsession with gender and church is bigoted. I could just as easily have asked if the fact that Brown was decided predominantly by male Protestants, rather than white males, somehow invalidates it. The logic is the same.

            2) Pope Francis’s concern for the poor is admirable, and I admire it. However, his specific economic prescriptions insofar as he has made any are naïve and influenced by the third-world leftism of his country of origin. He has his
            opinions on what I’ve already pointed out are prudential matters. I happen to disagree. I don’t get my theology from Milton Friedman; I don’t get my economics from the Pope.

            The “hot-button issues” indeed do not need to be discussed “ALL THE TIME.” In fact, they shouldn’t be discussed at all within the Church. The Church has its positions on them and the only discussion should be reiteration of those positions and of support for policies that flow from them (that’s the main thing I have against Francis). Besides, you are being a bit hypocritical. If Francis had made a clear condemnation of homosexuality and same sex “marriage” and declared once and for all that abortion is evil and women will never be ordained priests and had said “No more discussion of those topics is necessary” you would doubtless be among those clamoring for “more dialogue” about those matters. Silence on those matters is great as long as it is dissenters from liberal orthodoxy who are being silent.

            3) You are being disingenuous at best. You admire Pope Francis because you believe (mistakenly I hope, though he hasn’t been very clear) that he is liberal on social issues. Since I am not, I hope you are disappointed. I also hope you are disappointed in that his economic views have little or no influence in this country. Why that is horrifying or hard to understand quite escapes me.

            And quite frankly, it’s a mystery to me how you derived from anything I said in any previous comment that I “think the spirits of Roberts/Alito/Scalia/Thomas/Kennedy are something more like the ‘real’ church.” My position is that their religion does not matter. They are not “Catholic justices”; they are justices who happen to be Catholic. I see absolutely nothing sinister in that. Nor do I see anything sinister in the fact that their values are informed by their Catholicism, any more than you see anything sinister in justices whose values are informed by secular liberalism. After all, at least as many people in this country identify themselves “Catholic” as “liberal” (20-28% Catholic depending on poll; 23% liberal according to Gallup).

            4) The language here is rather interesting: “YOUR side” “your people” (emphasis added). It
            makes obvious what I’ve been saying all along. You are a knee-jerk “progressive” who cannot see past your ideological blinders. I’m actually quite amused by “whether the decisions are good or bad—aside from just left and
            right.” As if to you left doesn’t equal good and right doesn’t equal bad. And “in violation of the original constitution” is hilarious coming from a member of a group that approves of finding a right to abortion in the “penumbras” of
            the constitution. If you “progressives” are coming around to Originalism, I’m thrilled. Does this mean you’ve discovered Roe v Wade was wrongly decided? Or that “establishment of religion” means nothing more than establishing an official “Church of the United States” and means nothing concerning, say, prayer in school?

          • FriendlyGoat

            1) I would rather you just admit that you subconsciously wanted to talk about race so much that you “saw” it in my comments when it was not there at all.

            2) You might be better off if you DID get your economics in part from Francis and some of your theology from a good liberal economist. Paul Krugman, maybe?

            3/4) Six Catholic Justices are six Catholic Justices. Three Jewish Justices are three Jewish Justices. That’s what we have. If the tendency of the five Catholic males to rule in favor of corporations over people most of the time is some kind of value system informed by Catholicism, there is something wrong with Catholicism. If these guys are just sort of rogue in that regard, then that’s why I’d be in favor of asking the Catholics to get after them. The idea of these guys deciding, for instance, to weaken voting rights is absurd. To invite more secret money into political attack ads is absurd. To slap Ledbetter and Engquist was absurd. Catholics support that? Well, if so, let’s all have a public fit until more than half of your tribe steps up and says “Hey, wait just a doggone minute, SCOTUS GUYS, you’re embarrassing us!”

          • Anthony
          • FriendlyGoat

            Thanks for link to a very good article. It is important for us to ALSO focus on the similarity of experiences these people share in elite colleges and appeals courts, yet we do know that “eight or nine” of them are not our problem.
            FIVE of them are our problem.

            Fred (above) has pointed out they “happen to be Catholic”, which is true and “happens to be” all that is really needed to drive a wedge sufficient to impair their freedom to keep on being national pains in the butt. It’s not bigotry to claim that most of the Catholics are more sensible and fair-minded people than exemplified by the decisions we have received from Scalia, Roberts, Thomas, Alito and Kennedy—-and that we need better decisions from those five Catholics. Fred won’t agree, of course. But that’s not a problem unless all the Catholics are supporting these five justices for the corporate crap we’re being fed.

          • Anthony

            You’re welcome. And I don’t see intentional social mindbugs (bigotry) in your commentary – as humans we (often) try to predict what might go on in the minds of others (but we seldom know without confirmation).

      • Corlyss

        “then saying “Gee, I never thought about that state-exchange thing.” ”
        The black robes never, well, hardly ever, answer questions not asked. If I recall correctly, it was well advertised that the plaintiffs narrowly tailored the first case, banking on the idea that it was key to the entire construct. Courts are always crapshoots at best, to the extent that proponents of a policy position often decide not to ask questions when the risk of an unwanted answer is greater than living with the thing they want very much to have the court strike down.

        • FriendlyGoat

          Your last-paragraph change of subject isn’t up to your usual standard for vigorous argument.

© The American Interest LLC 2005-2016 About Us Masthead Submissions Advertise Customer Service