The Patient Protection and Affordable Care Act clearly limits federal subsidies for health insurance under that law to Americans buying it from exchanges “established by the State.”
The White House, among others, is urging the U.S. Supreme Court to disregard that clause because it was an “inadvertent” mistake.
Yet if the justices do that, what words should they heed from that or any other law?
A high court decision is expected soon on King v. Burwell, a lawsuit challenging the ongoing subsidizing of ACA insurance to residents of the 34 states, including South Carolina, that don’t have their own exchanges. Americans from those states are signed up under the federal exchange program.
Many Democrats worry that if the court eliminates those subsidies it would vastly reduce the number of people insured under the law.
Meanwhile, some Republicans fret that voters would blame the GOP if such a ruling costs them their subsidies and insurance.
Still, the president has been expressing confidence that the subsidies will remain intact.
Asked about the issue last week at the G-7 Summit in Krun, Germany, President Obama, a former constitutional law professor, replied: “This should be an easy case, Frankly, it probably shouldn’t even have been taken up.”
He added: “It’s not something that should be done based on a twisted interpretation of four words in, as we were reminded repeatedly, a couple of thousand page piece of legislation.”
So how can you twist “established by the State”? And what legal precedent reduces — or increases — the legally binding significance of a law’s words based on its number of pages?
Maybe the Supreme Court will be wary of the upheaval that could result from removing the subsidies and decide to keep them in place. After all, the justices overlooked many more than four plain words in its convoluted 2012 decision that upheld the ACA.
But if words with obvious meanings in any legislative proposal or law can be arbitrarily dismissed as “inadvertent,” how is anyone supposed to judge it?