WILL THE SUPREME COURT DECIDE TO NULLIFY OBAMACARE?

Our US Supreme Court

 

With activist judges such as Antonin Scalia and Clarence Thomas, anything is possible.

 

The time is now here for the US Supreme Court to take on the Affordable Care Act.  Yes, they are now seriously looking at “Obamacare”.  We will soon be able to see if the conservatives on the high court are going to be real Jurists, or will they be the partisan activist as they have sometimes been in the past.  Those areas I’m referring to are their previous passing of the Citizens-United case, as well as the damage they have done to the Voting Rights Act.

Theoretically, it is the courts responsibility to be restrained and to respect the statutory language of the law, rather than having these conservative members legislating from the bench.  They seemed to have instead opted for the later.

So, let’s look at the argument against the law and those that are out to destroy it. 

Now, the exact case before the court is, King v. Burwell, which concerns the American peoples’ availability of insurance subsidies in the 34 states that had opted for federally run insurance exchanges, rather than setting up their own exchanges.

Per those against the law, they say that if Congress had wanted to subsidize the customers in both state and federal insurance exchanges, it would have stated exactly that, not just “implied” that case.  Those against the ACA know that if the high court says that only the state run insurance exchanges were what the Congress had meant, then the federal subsidies would have to be stopped and the whole ACA program would eventually disappear.

The issue is whether the court will decide that the Congress meant for both types of exchanges to be eligible for subsidies, or that since the wording was just that only states would receive them, is it a miss-wording or what was really meant?

As I had previously said, those against the ACA say “If Congress wanted to subsidize customers in federal exchanges, it would have done that.” So, for a statutory strict constructionist, the case would already be closed.

Unfortunately, for those getting their insurance from the ACA, the conservative Justice Antonin Scalia, is someone who literally wrote the book on “statutory interpretation”. 

Justice Scalia’s is also known as a “textualist”.  This type of individual person would normally only follow the exact wording of the text.  If the wording did not absolutely say what it meant, then it couldn’t apply anywhere but where it said it did…period.  

 

This is in contrast to the “purposivist” who see the court’s role as reading a statute in light of its underlying legislative intent. Obviously, a purposivist would have no trouble deciding this case: The Affordable Care Act is obviously designed to cover as many uninsured as possible…period.

But even a textualist can rule for the government by looking to the structure and language of the specific law.

Former Justice Sandra Day O’Connor wrote in 2000, “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”   She was joined in this case of rejecting the Food and Drug Administration’s bid to regulate tobacco, and she was joined in it by the conservatives, Justices Scalia, Anthony Kennedy and Clarence Thomas.

So, in the Affordable Care Act case, according to Justice O'Connor statement, the text should be read in the context of other provisions of the law that would all be rendered null & void if all the subsidies were limited to state-only-operated exchanges. In addition, the prospect that subsidies would not be available on both exchanges never arose once during congressional debate, so it was never an issue during the program’s overall development.

In a previous Justice Scalia case, he also wrote in an opinion in 2001, another statutory construction that Congress, “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.  It does not, one might say, hide elephants in mouse-holes,” and that opinion was joined by both Justices, Kennedy and Thomas.

So, what would happen if the court did decide with those against the ACA?   Those citizens of the 34 states that failed to establish exchanges would be deprived of subsidies.  Individual insurance markets in those states would collapse. That’s because other provisions in the law, such as requiring insurers to cover preexisting conditions, would still apply, driving sicker people into those markets and driving premium costs sky-rocketing up.

But why you ask, is all this such an issue of concern for what the high court is, or is not going to do about the ACA?

The reality is that even though the conservatives continue to swear they are not legislating from the bench, most of the respected court watchers agree that the current conservative on the court have made this court the most activist court in decades.  Interpreting the law to bar the subsidies would be just that much more judicial activism that the conservatives repeatedly say they disavow. 

What these five conservative judges have done to date will go down in history as one of the most partisan high courts…ever. 

Hopefully, for millions of Americans, they won’t pull that number on this part of the ACA. 

But then, I wouldn’t hold my breath.

Copyright G.Ater  2015