June 26, 2015

Hate it if you want, but Obamacare wasn't built to fail

Damian PennyRebel Blogger

You might think Obamacare is a disaster. You might think it's the worst legislation ever passed by the United States Congress. But put that aside for a minute, and consider the question before the Supreme Court of the United States in the much-discussed King v. Burwell decision.  

Basically, the Affordable Care Act sets up "exchanges" where people can review and purchase health insurance plans, and then obtain subsidies if eligible. It was hoped that state governments would arrange for this, but as a back-up plan, the federal government created its own exchange for residents of states whose governments refused to do so.

King v. Burwell came down to one disputed passage in the mammoth Affordable Care Act: whether a passage about a "state" setting up an insurance exchange meant a state or federal government, or a state government exclusively. If the court had sided with the plaintiffs, the federal exchange would have been declared illegal. From there, the entire edifice would have collapsed.

The Obamacare trade-off is that insurers can no longer turn down applicants for pre-existing conditions, in exchange for the law requiring people to purchase insurance or face a tax penalty.  For insurers, this only works if people in every state are required to buy insurance, to make up for the fact that they have to take on high-risk customers. 

If the plaintiffs' argument in King v. Burwell had been accepted, many states would have been left outside of the system, with their low-income residents unable to receive the very subsidies which would allow them to buy insurance in the first place - causing a "death spiral" that would have scuttled the entire Affordable Care Act.

Again, from a political standpoint, this might have been what you personally wanted. But the issue before the court was whether the drafters of the ACA included a "poison pill" in their own legislation that would have rendered it unworkable. The very idea is ridiculous, and Chief Justice Roberts confirmed that the plaintiffs' argument makes no sense in the context of the legislation:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined -“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

The thing is, conservatives often argue that it's not the place of unelected judges to legislate from the bench. Their job is to interpret the law, not go over the heads of the people's elected representatives.

And that's exactly what Roberts did in this case. Love it or hate it, the Affordable Care Act was passed by the United States Congress, fair and square. Deciding on the more restrictive interpretation of the disputed passage, against the clear intentions of those who drafted and passed the legislation, would have been a nakedly political power grab by the GOP-appointed wing of the Supreme Court.

In politics, you win some and you lose some. That's the way it's always been. Is the ACA working? It's hard to say at this stage (the number of uninsured Americans is coming down, though arguably at the expense of those whose premiums have substantially increased) but Roberts determined that it should be given a chance to work. In this case, it's hard to see how he could have ruled any other way.


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commented 2015-06-26 17:59:53 -0400
No Roberts decided the word state can mean whatever Obama told him. America is got on this socialized healthcare bandwagon at the wrong time. Canada got on it when there was 30 workers per retiree. We had the advantage of being early on the pyramid scheme. There is no one for Obama to pass the buck but the middle class, which will be paying for the uninsured.