Although I’m not a huge fan of Obamacare, I’m happy with the result of the Supreme Court’s decision in King v. Burwell. I’m a little less happy with how the Court reached that decision.
From what I’ve read, it seems the Democrats were in the middle of making some changes to the Affordable Care Act when the Senate approve it, and they were probably planning to fix the details during reconciliation, but they got stuck with that version of the Act when they lost control of the Senate and decided to pass the bill in the House without further cleanup because they didn’t trust the Republicans with the reconciliation rewrite. This is not how you get well-crafted laws.
One my concerns about the ACA from the beginning was that it was so contentious that Congress would screw it up. I thought the Republicans would force the Democrats into all kinds of strange compromises to pass it, and the resulting mess would be worse than what we had before, and worse than what the Democrats wanted.
It seems to have played out a little differently than I expected. The Democrats managed to pass the ACA without many compromises, but now that control of Congress has changed parties, they are afraid to change a word of it because they know the Republicans would insist on other changes as well. We saw the kinds of problems this can cause when ACA regulations led insurance companies to drop child-only health insurance, or when it looked like a change in the handling of Social Security could allow people with relatively high incomes to get free insurance, or when the ACA website was forced to follow the original roll-out schedule even though it wasn’t really ready.
King v. Burwell is another example of something that could have been fixed in an afternoon if the Democrats still controlled congress — or if they had a good working relationship with the Republicans when it comes to minor technical changes in already-passed law.
But that didn’t happen, so it ended up in the courts, and eventually made it to the Supreme Court, which basically had two options: Either they could decide that the law applied exactly as written, meaning that people using the federal exchanges could not get subsidies unless Congress did its job and fixed the law, or the Court could do what they just did, and interpret the law as if it had been written more sensibly, for uncertain values of “more sensibly.”
I’m not sure how common this is — the side that won says it’s all just routine interpretation of statutory language, nothing to see here, and the other side says OMG! Worst. Thing. Ever. — but like many other people, I wonder what other laws the courts could decide to “fix” this way. Can they close loopholes in the tax code? “Examined in it’s full context, the purpose of the tax code is to bring money into the government, and despite the plain language of the statute, it would be counter to that purpose to allow this revenue stream to remain untaxed…”
Or how about regulatory law? “Although the plain language of the statute explicitly permits discharge of this pollutant at higher levels than the EPA regulation allows, we’re going to let the EPA pick its own levels anyway, because that would be more in keeping with the overall goals…”
And then there’s criminal law…what happens when something is a little ambiguous there? “Although the alleged behavior doesn’t meet one of the elements of the definition of the crime, it’s clear from the preamble to the Crime Bill that Congress meant to outlaw this behavior…”
I would hope that the burdens typically required in criminal law would prevent this kind of thing, but our governments are pretty good at sneaking criminal punishments into the civil law through things like civil commitments, immigration proceedings, and asset forfeiture.
I realize I’m over-generalizing from a fairly specific ruling, but this seems like the kind of power that certain judges will love, and it’s not unheard of in law for exceptions to swallow rules. It’s not hard to imagine this becoming “Find some ambiguity, write your own law!”
Having said all that, I think the result of the Supreme Court’s King v. Burwell decision is probably for the best. Obamacare has enough problems without having the Court tear out a large and important chunk of it without careful coordination. That would have injected even more uncertainty into a healthcare system that is already going through a lot of changes. Insurance companies and customers would each have had to figure out how to respond without knowing what the other is going to do. And neither would have had a clue how (or if) a Republican-controlled Congress would try to fix the problem, or what concessions they would insist on from the Obama administration. This kind of uncertainty about the legal regime tends to kill off investment and jobs until it gets straightened out.
So, I’m not sure how I feel about how we got here, I think it’s probably for the best that we’re where we are, and I worry about where this will lead.
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