It’s truly extraordinary, the lengths modern conservatism will go to to ensure that more members of what Dickens called “the surplus population” will die. First, refuse to set up state-run exchanges, so that the poor and working-class people of your state who are desperate to buy subsidized health insurance have to go to the federal exchange. Next, after your own decision not to set up an exchange has made the existence of the federal exchange necessary, you scour the Affordable Care Act and find one sentence that left out one or two words that could enable you to discredit the federal exchange.
Then you sue, claiming that the federally facilitated exchange, which exists because legislators had to plan around what they knew would be your own inaction and hostility, is illegal! Then, you get a couple of aggressively activist judges to agree with you. All that’s needed now is for John Roberts to get back on the team, and the deed will be done: Millions of people will be at risk of losing their no-longer-subsidized insurance, or see their rates shoot up to levels they simply can’t afford. And some, or many, will surely die sooner than they would have. What a legacy.
It’s revolting beyond words. Actually, not really beyond words. I have a few. Orwellian, Malthusian, barbarous, depraved…I think you get me. But will it work?
The Justice Department will request that Tuesday’s decision, by a three-judge panel of the D.C. Circuit, be heard en banc by the full panel. The full panel has seven judges appointed by Democrats and four named by Republicans. A. Raymond Randolph, the senior judge who sat on the three-member panel and who made his ideological contempt for the ACA crystal clear during oral arguments, can also participate if he wishes, as can Harry Edwards, another senior judge who dissented Tuesday. That makes for an 8-5 majority that will almost surely reverse the three-judge panel.
They will be doing so, by the way, not because of politics, but because of law. Brian Beutler explained it well in his New Republic piece. The long and short of it hinges on the question of whether the language in the ACA is “ambiguous” on the point of whether the federal government is allowed to operate an exchange. If it is ambiguous, that’s good enough to let the law stand.
What Randolph and Thomas Griffith, the other conservative judge who ruled with him, essentially did was to take one sentence of a law that runs to thousands of pages and play gotcha. What judges are supposed to do is look at statutory language in context and think about the drafters’ actual intent. But hey, don’t take it from me. Take it from a certain Supreme Court justice, who wrote in a decision just last month of the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” That was Antonin Scalia.
But these were strange words, coming from Scalia. The context was his majority opinion in last month’s case about the EPA’s regulation of greenhouse gas emissions, which was a complicated and split verdict, albeit one that ultimately gave the EPA most of what it was asking for under the Clean Air Act. More typically, Scalia is a textualist. You can tell what that means, I’d wager, without me even explaining it, and in this case, it ain’t good: “I can’t read legislators’ minds. I can go only by the words in the bill. If they left out a word, they left out a word. Tough.”
In fact, there are other sections of the ACA, say several experts, that clearly at least imply the presence of or need for a federal exchange. And plain common sense tells you that Congress didn’t pass this huge and elephantine—and federal—law, whose very point was to enable more Americans to purchase health coverage, with the expectation that said coverage would be limited to the citizens who happen to live in some states but not others. It is facially, as they say in the law business, absurd.
But with this Supreme Court, who knows? Anthony Kennedy, the one we usually count on for a little decency, voted to dismantle the ACA the last time. John Roberts saved the day, in a backhanded sort of way. Roberts would have an opportunity to get his textualist ticket, revoked by conservatives after his decision to uphold Obamacare, re-stamped for life.
More than 5 million Americans have purchased subsidized insurance through the federal exchange. If the Supreme Court does its worst, these Americans will see their premiums increase by 76 percent, according to a study cited by Nathan Pippenger in his blog at the Democracy journal website (I edit the journal, but not his blog). Clearly, many of those people will drop their coverage. So just as America has started down the road of joining every other advanced country in the world in trying to insure its whole population, here comes conservatism and the Republican Party to say: “No. We’re not like the rest of your so-called advanced world.”
If they succeed, their dismantling of the ACA will dwarf everything else that has happened in our era. The GOP will be known for years to come as the party that literally ripped security out of the hands of millions of people who so briefly and tenuously had it. They call themselves the “party of life.” And as with most of what they say, the opposite is the truth.