Once more unto the breach but briefly

There is a race to get to the Supreme Court again on the ACA. This time the question is whether covered individuals get a subsidy if they bought the insurance on an exchange created by the federal government for a state because the state elected not to do so. The issue is purely one of statutory construction. Linda Greenhouse, who is generally not my favorite commentator, has a good explanation of this race here.

Remember my post on the Hobby Lobby case?  In that post, I suggested that the Supreme Court should be more attentive to Alexander Bickel’s “passive virtues.” This most recent ACA argument–fought out now in the D.C. and Fourth Circuits–gives the Supreme Court an opportunity to live up to Bickel’s advice. Here’s how:

  • Every time a Circuit court changes the status quo–rules for the ACA opponents–the Supreme Court should stay the case.  Remember, as Bickel would, that a ruling against the ACA frustrates the will of the people as expressed by Congress, even though Congress passed the law with the narrowest of margins.
  • The Supreme Court should not take any ACA case on the federal vs state exchange issue until every Circuit court has ruled. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing but the opportunity to make their statutory construction argument as quickly as they would like. There is even the possibility that the Court could avoid the question entirely if Congress, in the interim, cleared up the alleged statutory ambiguity.

Delay, delay, delay should be the mantra of the Court. Since both conservative and liberals, to their shame, now endorse the idea that law is merely politics by another name, the Court should do everything in its power to push back hard against such bilge. The world will not fall apart if the Supreme Court takes a “wait and see” attitude that lasts several years. More time to nap is almost always a good thing.


6 responses

  1. There is much question begging here. A “ruling against the ACA frustrates the will of the people as expressed by Congress”? Same for “intended subsidy.” That’s precisely what’s in question, and is to be answered by statutory interpretation. The “status quo” may be, as the plain language of the statute would suggest, frustrating “the will of the people as expressed by Congress.” In my opinion, the “passive virtues” you speak of would be best expressed by the fundamental canon of statutory interpretation advanced by Lysander Spooner in The Unconstitutionality of Slavery, whereby he would have had judges at all levels be quite “active” in striking down slavery before the Civil War. The rebuttable presumption is against every kind of government action, including the government action that made slavery possible. This is the Presumption of Liberty, and the Presumption of Innocence.

  2. The idea that large issues of law are to be decided on a technicality is odious. As you point out, no one is harmed by including everyone who meets the conditions that Congress established for health insurance subsidies, and this is obviously what Congress intended. On the other hand, many will be harmed if those who signed up for insurance on the federal exchanges precisely because that was the only way to do so are suddenly excluded from fully participating.

  3. There is no harm in waiting since a stay and the status quo would mean simply that insurance buyers would continue to get the intended subsidy and the opponents suffer nothing….

    Except: the status quo, as the ACA as written says, is for no subsidies for policies bought on Federally built exchanges, but only for the State-built ones. This is the controversy. The harm of the Supremes’ waiting, if those objecting to Federal exchange subsidies are right, is to the taxpayers who are paying those illegal subsidies. How will they be made whole? Will the Federal government, 10 years from now after all the Circuits have weighed in and the Supremes finally ruled, actually claw the money back?

    Where would be the justice there, for the health coverage providers from whom the money might be clawed, or for the actual beneficiaries of the subsidies who only acted in good faith and don’t have the wherewithal to pay back their overpayments and who now must either repay through higher premiums or through losing their coverage altogether?

    Eric Hines

  4. One would need the wisdom of John Marshall and the patience of Abraham Lincoln to deal with what they currently have to deal with. It seems like we live in a world kept together by a razor wire and that all we ever do is fight.

    Honestly, if we ever got media outlets to STFU (see what I did there?) we might finally get some peace and quiet in this country for a bit. I’m tired of crisis o’clock. I agree with you that it is not as pressing an issue as people think it is.

  5. Eric,

    The status quo is the status quo. The administration has construed the statute to say that both types of exchanges qualify. In virtually every other circumstance, the construction of a statute by an administrative agency is given deference. I counsel only that the Supreme Court relying on that principle of deference wait as long as it can. Your predictions of dire consequences are, respectfully, overblown. It is highly doubtful in the real world that the government would seek to “clawback” money paid to insurers or deny coverage or raise premiums to enrollees in midstream if the decision goes the other way some time in the future. If this is such a big deal–an alleged ambiguity in the meaning of this tiny portion of the ACA–then it can easily be resolved by the legislative branch. For once, the Supreme Court ought to say, without saying so explicitly, “fix it yourselves, we won’t be the fall guys for one side or the other.”

    All the best.


%d bloggers like this: