Thomas Donlan of Barron’s turns his attention this week to the U.S. Supreme Court’s upcoming ruling in the King v. Burwell case challenging Obamacare subsidies in states that lack state-run health insurance exchanges.
Maybe a Supreme Court majority will torture the statutory language until it tells them what they want to hear. Or a Supreme Court majority may find the plaintiffs are right in their reading of the law, but wrong in their application of it. For example, the court could decide that the Internal Revenue Service is headed by a sort of bureaucratic Humpty Dumpty, who has the regulatory power to make the law mean what the sponsors intended it to mean.
Remember what Chief Justice John Roberts did in the last challenge to the ACA: To the four votes of justices who held that the federal government does have a constitutional power to compel people to buy insurance, Roberts added an opinion with the unique interpretation that even though such a power doesn’t exist, the penalty was effectively a tax, and therefore constitutional.
This time, there are still four justices who seem to have no problem with the law. There are three who are very likely to vote against it again, and there are two enigmas—Roberts and Justice Anthony Kennedy. The subsidies will stand unless they both vote to remove them—bad odds for the challengers.
A plethora of lawyers have offered ways to uphold the administration’s interpretation, but there is one method that the justices should not use: Five years in, this is still just a law, and the issue is merely a question of drafting and interpretation. The ACA is not a way of life, nor is it a new reality.
The president is wrong to suggest that the details don’t matter, as long as the people are happy, as long as “the vast majority of them like their coverage.”
What they like doesn’t matter if what they are getting was never authorized by law.
Politics is fundamentally a game with rules, even if the rules are as flexible as the minds of Supreme Court justices. Both God and the devil are in the details; all nine justices should ignore the political consequences of their opinions.
