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.

 

Also listed under: Journal Register Columns

Comments:

  • No comments yet

Add a Comment

Display with comment:
Won't show with comment:
Captcha:
What color is the ocean?
*Comment must be approved and then will show on page.
© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
Media & Speaker booking [hidden email]