Nov
15

King v. Burwell: A Ridiculous Attack on Obamacare

The Roman orator Cicero defined a commonwealth, or a republic, as a group of people drawn together by common interests and a common conception of right, or justice. In other words, not just any group of folks constitutes a stable political entity.

By this standard, we are no longer a republic. The evidence is everywhere.

Consider the case of King v. Burwell, now on the docket of the United States Supreme Court. This is the case in which opponents of the Affordable Care Act, also known as Obamacare, have seized upon four misplaced words in a complex piece of legislation to try to kill the health insurance plan.

Obamacare was a creature of compromise. Opponents of a national health-care system blocked passage of a single-payer system, creating a hybrid of government and private industry to administer the plan.

Central to the plan are the so-called health-care exchanges, or markets on which individuals can purchase insurance. Each state has one. Some states run their own, others let the federal government run their exchange. It's all about federalism, you see -- giving each state sovereign space to attend to the health, education and welfare of its citizens. (Connecticut has its own exchange, Access Health CT.)

We're all required to purchase insurance. An individual mandate requires it. Lower-income folks can get a subsidy to help get insurance. About 80 percent of Obamacare recipients get subsidies.

The Internal Revenue Service, a federal agency, administers these subsidies. And there's the rub. Obamacare permits the agency to direct subsidies to flow through exchanges "established by the states."

These four words -- "established by the states" -- matter. If a state has no exchange of its own, then there is no "exchange established by" the state. As a result, there is no vehicle to deliver the subsidy. Obamacare is unlawful in those states without exchanges established by the states, critics say.

Congressional staffers and lawmakers say the four words were left in the final draft as an oversight. The final legislation was the product of many compromises. The clear intention of the bill is what matters, and that intention was to assure that all Americans have access to affordable health care purchased on the private market.

Welcome to the heady world of statutory construction.

It might surprise you to learn that rules governing interpretation of statutes, written laws, are complex. Entire books are written about canons, or rules, of statutory construction. 

Sometimes, words are interpreted according to their plain meaning -- the plain meaning rule. Sometimes, words are interpreted in the context of the words surrounding them, or according to the company they keep. General principles do not detract from specific terms. And so on.

Jurists debate whether judges can determine the meaning of a statute by reference to the intention of the lawmakers who drafted it. Of course, the problem with this approach is assuming there was some general intention that can be known. More often than not, as is the case with Obamacare, a given piece of legislation is the product of compromise among factions.

Lawyers and judges are aware of another phenomenon in their work with words. It's called a scrivener's error, the sort of careless mistake a person might make when, for example, they are composing a technical piece of legislation hundreds of pages long in the hothouse environment of a heated legislative debate. Try as you might to write the perfect brief, law, or opinion, errors occur.

Those who participated in drafting Obamacare contend the four words were left in the bill in error. Not so, exclaim opponents of the health-care plan. The bill contains within it the seeds of its own destruction. Of course, Congress intended to establish a health-care plan destined to fail, to collapse, to deprive some 80 percent of the folks it was intended to serve of health-care coverage.

Watching the debate makes me yearn for tar and feathers. It is a disingenuous, dishonest argument waged by desperados given to penning such swill as "Obamacare violates God's law." (Yes, Cardinal Sean O'Malley, archbishop of Boston, I am referring to you -- get thee to a monastery.)

I was no fan of Obamacare when it was passed, and I am plenty uncomfortable with the government's mandating what I must purchase from private health insurers. I would have much preferred a single-payer system, with expanded Medicare coverage made available to all Americans and paid for by general tax revenue.

Oh, I'm a socialist, or -- gasp! -- a communist, you utter.

Grow up. We're all members of the same society, we all live in the same community. In a land of affluence it is criminal that some folks go without health care. That's the beginning and the end of that debate. If you want to go live in the state of nature, an island unto yourself, go stake your claim to some abandoned turf in Somalia, or some other failed state.

That the United States Supreme Court decided to hear the case of King v. Burwell is deeply disturbing. Will the court overturn a health-care plan upon which millions depend because of poor editing of a compromise bill? I hope the court has more sense than that.

But, of course, I fear it lacks such sense.

The court is a creature of politics, the justices less oracles about what is right than prisms through which individual passions and prejudices collide with neutral principles susceptible to many differing interpretations.

The court, like the country, is deeply divided. We lack common interests and a common conception of right.

I am reminded of Thomas Hobbes, who wrote in 1651, "Words are wise men's counters, they do but reckon with them; but they are the money of fools."

The folks attacking Obamacare on this strained and ridiculous theory are fools, all right. So is the Supreme Court for humoring their nonsense.

 

Related topics: Journal Register Columns
Comments (1)
Posted on November 19, 2014 at 8:13 am by Ray
Obamacare
Norman, your observations and arguments about the affordable care act ACA are misplaced. You claim the Supreme Court is incorrect in accepting King Vs. Burwell and that their seizure of four misplaced words in complex legislation is misguided. You also state the ACA was the product of compromise. First, as you know, courts when interpreting statutes look to established rules; if the meaning of the words are clear and unambiguous, then the courts will give them their usual meaning assuming that the legislature knew what they meant and wrote what they meant. The ACA architecture under its scheme of credits and subsidies presumed that the states would set up exchanges and the federal government would not be involved in the exchange process. So, why did more states not set up exchanges? Simple; if a state set up an exchange, then they had to expand Medicare coverage – the federal government had a complex formula that for several years the federal government would reimburse the states for some of the increased costs – in other words, if you set up an exchange as defined under the ACA you impose an added budgetary burden on the citizens of that state. So these are not a mere four words, they subsidies go to the heart of the legislation, and the words were not accidental because it was anticipated the states would establish exchanges,
Second, this legislation was not the result of compromise. Not one republican voted for the legislation. This is not because republicans are against health care, but because this legislation if allowed to stand will eventually lead to a one size fits all DMV type of health care delivery system. I certainly do not want that type of system. Prior to this legislation, our health care delivery system clearly was not perfect but there were ways it could have been fixed; for example pass legislation that would have prevented denial of coverage for preexisting conditions.
To summarize, the Supreme Court accepted this case not because of four misplaced words but because these four words were precisely inserted into the legislation with the belief that the states would establish exchanges. I predict the court will hold; the words mean what they say – no ambiguity.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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