The problem with King v. Burwell was not that it was wrong-headed (although it was) or that it was based, as Chief Justice John Roberts put it, on a tortured reading of “the ultimate ancillary provision: a sub-sub-sub section of the Tax Code (although it is).
The problem with King v. Burwell is that it was never about Obamacare. It was only about winning and losing.
It was, as everyone knows, the ultimate find-the-poison-pill-in-the-bill game, in which a group of elite conservative lawyers scoured the many thousand pages of the bill to find something – anything – that might gut the law. They found four words, four ambiguously written words. The four words got them to the Supreme Court, which must have surprised even them. The four words – taken out of context – would have basically destroyed the law and sent it down the dreaded death-spiral (not death-panel) course.
The four words suggested that the law did not intend for people covered by the federal exchanges, as opposed to state exchanges, to be eligible for subsidies, something that no one — as in no one – actually believes.
No one was arguing the law. They were arguing whether these four words meant to bring out the lethal injection package.
Let’s be honest. The experts had dismissed the case until the arguments began and they watched, with some dismay, as light briefly turned to dark and theories were put forth about Congressional intent that were contradicted by the actual words said in Congress at the time. If you’re looking for the real Orwellian thing, this was it.
In these four words, we had nothing more than a continuation of the 50-odd futile votes to repeal Obamacare that had been taken in the House. As more than one observer has noted, the Republicans must actually be happy they lost this case because, if they’d won, they’d have had to do something about health care reform. Now they can just continue complaining about Obama rather than coming up with an alternative. Hey, it’s a living.
For Republican opponents of the law, winning is being able to continue to fight the law. In which case everyone – with the possible exception of a truly angry Antonin Scalia – gets a victory. That includes Obama, Obama’s legacy, the dozens of people running for the GOP nomination, the 16 million or so now benefiting from being insured, Harry Reid and Nancy Pelosi, and every need-a-column pundit I know.
How sick is that?
Obamacare survived King because John Roberts and Anthony Kennedy refused to play the game, which, now that we know the ending, or, more accurately, the ending of this particular round, allows us to laugh when Scalia says we should change Obamacare to SCOTUScare or that the majority opinion is “interpretive jiggery-pokery.” My favorite is “pure applesauce,” which Scalia apparently borrowed from Will Rogers, who (just sayin’) probably would have favored Obamacare.
If you ask your favorite law professor – it’s convenient to have one in the family, as I do — Roberts made the conservative call, the anti-judicial-activism call. The only reason anyone thought this case had a chance was that conservative justices had given up on the idea of judicial restraint, so long as they had the 5-4 advantage. And Roberts had gone along.
But, in both Obamacare cases, Roberts must have been embarrassed by how far the activists on his side had gone. And so, he didn’t make law this time. He looked at the law and saw clearly what it said — that, in Roberts’ words, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”
Scalia said that the court will be remembered for going out of its way to support laws it “favors.” But Scalia is wrong. What will be remembered is that the court wisely refused to be drawn into the fight.
In ordinary times, the fact that two conservatives joined four liberals on the court would put it all to rest. But these are not ordinary times.
In ordinary times, Republican 2016 candidates, knowing that great majorities of people favor large portions of the law, would come up with plans to, you know, improve it. But in these times, the only way to get nominated in the GOP is to oppose any law named for, or favored by, Obama. Check Ted Cruz’s tortured path on the trade bill as just one example.
So, what’s next? Well, we can start with what Cruz said back when the repeal efforts began – you remember, it was tied to the threat of a government shutdown – as he told Fox News: “If we’re going to repeal it, we’ve got to do so now or it will remain with us forever.”
Once the exchanges and subsidies start working, Cruz said, people will get “hooked on Obamacare so that it can never be unwound.”
People are getting hooked. And thanks to the Court, nothing can happen now so long as Obama is president. If the Democrats win in 2016, the game is over, and Obamacare will become, as Obama suggested, as accepted as Social Security and Medicare. If Republicans win, the fight starts all over again, but the fight will be based on what works in Obamacare. No one’s going back to a time when insurance was denied for pre-existing conditions. No one, in fact, is going back to a time where the goal was not to make sure everyone has insurance.
The fight will continue. That’s the point. But the ending, which we thought was clear, now almost certainly is. Applesauce, indeed.
Photo credit: Mark Fischer, Creative Commons, Flickr.