THE CASE AGAINST OBAMACARE APPEARS WEAKER THAN EXPECTED

          The High Court & the Life-Time Nine

 

 

Initial arguments against the Affordable Care Act were seriously questioned by the high court.

Well, I recently wrote my explanation for what would happen if the US Supreme Court voted against the Affordable Care Act (ACA), aka: Obamacare.

This week, the robed nine Supreme Court justices began hearing oral arguments in King v. Burwell , the legal effort by the conservatives to dismantle Obamacare.

The good news is that in the hour and one half of argument of the Obama administration’s defense, it appeared to show significant doubt on what had previously been presented as a real challenge to Obamacare’s legality.

Don’t get me wrong.  The high court could still knock down Obamacare’s federal exchanges by saying that the wording of the law does not allow for the federal exchanges to offer subsidies to the public.  But based on the arguments presented, it would now be a major surprise to take health-care away from 8 million Americans while causing the death of Obamacare.  Especially after listening to the narrow basis of the opposition’s argument.

The four liberal judges did a stellar job at picking apart the arguments of Michael Carvin.  This lawyer had also argued, unsuccessfully, in the 2012 challenge to the health-care law. 

 

As expected, Justices’ Alito and Scalia were the main opposition, but even they were less than aggressive compared to some of their previous questionings.  Where Chief Justice Roberts had been the deciding vote to support Obamacare in 2012, and he had written that opinion, Roberts was almost silent throughout the 90 minutes.  Justice Kennedy, the perennial swing-voter of the court, he voiced serious doubts about the conservative lawyer’s argument against Obamacare.

Justice Kennedy said that while “perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument,” along with a violation of federalism, because states would be coerced to embrace Obamacare exchanges or enter an insurance “death spiral,” he said.

“The government’s never made that argument,” Lawyer Carvin had replied.

Kennedy shut him up with: “Sometimes we think of things the government doesn’t! ”

What’s at issue is whether the language in the Affordable Care Act, calling for each state to establish a health-care exchange, means that people are not eligible for subsidies in the states where the federal government created the exchanges.  And this had all occurred because many states (mainly, Republican run states) refused to set up their insurance exchanges. Take away those subsidies, and Obamacare goes into the “spiral”.  This is because there have previously been other various business exchanges and co-operatives, and whenever subsidies or mandates were removed, they have always failed.

Based on this one day of arguments, the thinking is that only one small part of the law favors the critics’ interpretation.  In fact, today the issue is just a four-word statement in the law that excluded the two words ‘federal exchanges”.   However, when reading the other parts of the law, and the overall context of the law, the rest of the law contradicts any such negative interpretation. Given this dispute over the simple text, it appears almost inconceivable that the justices could consider that sufficient justification for tearing apart the nation’s new social fabric of affordable healthcare.

What is so bizarre is that the so called fiscal conservatives are arguing against the ACA offering tax credits, which would means that in their going after Obamacare, they are in favor of tax increases...?

Justice Scalia, in trying to justify the social confusion that would occur if the court threw-out the law, he asked the government’s lawyer, Donald Verrilli: “[Do] you really think Congress is just going to sit there while all of these disastrous consequences ensue? . . . Congress adjusts, enacts a statute that takes care of the problem. It happens all the time.”

“This Congress! your honor?” Verrilli replied.

The courtroom exploded in laughter.

Outside the court, there were hundreds of activist in support of Obamacare.  Many more of them than the group of those protesting against the ACA.  In the unlikely, but possible, event that the Roberts court decides on the textual dispute for overturning the most significant social legislation of our era, I hesitate to anticipate the national upheaval that will occur. 

Where there were some major issues against Obamacare when it was first introduced, over time, Americans that now have health care for the very first time are finding out all the positives of the ACA.  In addition, with all the positive results from the paid-for preventative care provided by the ACA, that too will be hard for most Americans to give up.  Especially, just because of a 4-word screw-up in the text of the law.

Hopefully, even this conservative activist court will see the light that they have much “bigger fish to fry” in the court’s future with the up-coming issues of gay marriage and immigration.

Copyright G.Ater  2015