Liberals Very Concerned As Those “Four Words” Go To The Supreme Court

And they are trotting out lots of scary stories

(NY Times) The first lawsuits challenging the Affordable Care Act were still in the early stages, but conservative lawyers were already working on a backup plan in December 2010 if the first line of attack failed.

It was Thomas M. Christina, an employment benefits lawyer from Greenville, S.C., who found a new vulnerability in the sprawling law. “I noticed something peculiar about the tax credit,” he told a gathering of strategists at the American Enterprise Institute.

With a rudimentary PowerPoint presentation, Mr. Christina sketched a new line of argument. He pointed to four previously unnoticed words in the health care law, enacted nine months earlier. They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been “established by the state.”

The Supreme Court will hear arguments on the implications of Mr. Christina’s theory on Wednesday. If a majority of the justices accepts it, more than six million Americans could lose health care coverage and insurance markets could collapse in about three dozen states where the federal government runs the exchanges, imperiling the health care law itself.

Except, none of them will actually lose their health insurance; all they will lose is their taxpayer funded subsidy.

The timing of his discovery figures in the case, which will turn on the meaning of the phrase he identified in 2010. The justices must decide whether Congress intended it to forbid the government to provide subsidies in states without their own exchanges.

Supporters of the law note that Mr. Christina did not discover the phrase until well after the law’s enactment, suggesting that Congress had been unaware of the possibility that people in states that opted not to run their own exchanges would be ineligible for tax subsidies.

Well, it’s a Very Big Bill, at over 2000 pages. However, we know, especially per Jonathan Gruber, that those “four words” were intended to incent States to create their own health exchanges or see their residents not receive subsidies.

Liberals are also very upset over the “plain meaning

There are over 400,000 words in the Affordable Care Act. The challengers in King v. Burwell rely upon a single one of those words—a simple preposition (“by”) buried in a provision (26 U.S.C. § 36B) setting forth the formula for monthly tax credits for individuals—as the basis for an interpretation of the Act that would unravel Congress’s efforts to guarantee affordable health care for all Americans.

According to the challengers, Congress’s use of the word “by” in the phrase “an Exchange established the State” (rather than, for example, referring to an Exchange established “within” or “for” the State) has a world-changing impact: On their reading, when a State chooses to allow the federal government to set up a health-insurance Exchange for its residents—an option the Act plainly allows, and one that almost three dozen states have adopted—that choice would have catastrophic consequences, namely, the denial of tax credits for all of the State’s residents who wish to purchase insurance on that Exchange . . . which would in turn lead to the virtual destruction of the insurance market in that State, thereby making the State’s residents much worse off than if Congress had not enacted the ACA at all. See, e.g., NFIB v. Sebelius, 132 S. Ct. at 2674 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (“[The Act’s] system of incentives collapses if the federal subsidies are invalidated.… With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”).

For good reason, the challengers make little effort to demonstrate that any members of Congress, let alone majorities of both houses and the President, actually intended to put the States to such a terrible choice, with such ruinous consequences if a State chooses one of the options Congress has offered.

Perhaps the members of Congress should have read the bill prior to voting to pass it. Perhaps they shouldn’t have passed a bill with 400,000 words. For comparison, one of the most well know very long books, War And Peace, is around 560,000 words (English edition). Also in comparison, if you mess up 4 words in software code you can mess up a big part of the program. Remember, a tiny coding error brought on the Y2K freakout. Finally, one cannot complain that Congress meant to give subsidies to people who sign up via a federally run exchange when they hadn’t read the bill.

Then we have Nicholas Bagley opining at the NY Times

Just 16 states have established such exchanges. If the court rules in favor of the plaintiffs, an estimated 9.6 million people who bought insurance through HealthCare.gov will lose their coverage.

Again, no, just their subsidies.

Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.

But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.

Perhaps Democrats who voted for this horrific law should have thought of this, which would have required reading the bill, beforehand. If Ocare supporters lose at the Supreme Court over this, they have no one to blame but themselves.

As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.

You can bet that the plaintiffs will play the words of Jonathan Gruber, a key architect of Ocare, who stated multiple times that the intention was to deny subsidies to states with federally run exchanges.

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18 Comments

Comment by Dana
2015-03-03 09:22:25

I would be very happy, very happy indeed, if those four words brought down the entire law.

The entire law is nothing but another fornicating welfare plan, taking money out of the pockets of people who work — that’s me — to give it to lazy scumbags who won’t.

 
Comment by david7134
2015-03-03 09:26:32

Dana,
The law is far more than a welfare plan. It fundamentally changes the way your doctor does business, makes evaluations, receives instructions from bureaucrats, and just about anything else that you can possibly think of that makes medical care in the US, more expensive, less obtainable, and further from your ability to use.

 
Comment by Kevin
2015-03-03 10:49:50

When I read the headline, I thought the four words were going to be “In God We Trust” :).

 
Comment by Jeffery
2015-03-03 13:27:46

So when the 5 conservative Roman Catholics on the Supreme Court toss out the law, what will happen to the 9 million Americans who cannot afford health insurance any longer?

They can get sick and die, which is the conservative plan for keeping healthcare costs down.

 
Comment by Kevin
2015-03-03 13:47:32

Hmm. So Jeff is a bigot against Catholics, huh? Good to know. Are there any other groups you are racist or bigoted against?

 
Comment by jl
2015-03-03 14:29:00

What does the fact that they’re Roman Catholics have to do with anything? Just like a good little liberal-guilt by association.

 
Comment by Jeffery
2015-03-03 15:38:08

Just an observation. Roman Catholic extremism. Like Islamic extremism.

I thought you guys got upset if you didn’t connect the religious dots?

 
Comment by Kevin
2015-03-03 18:33:09

Hehe. btw, THAT was a Saul Alinsky tactic :). I do not really believe you hate people just because they’re Catholic. It was just too hard to pass up.

 
Comment by Kevin
2015-03-03 18:38:19

You really did try to paint Catholicism with a negative brush though, didn’t you. Why would you do that?

 
Comment by jl
2015-03-03 19:13:55

What Roman Catholic extremism?

 
Comment by Kevin
2015-03-03 19:52:59

Good question. Perhaps he’s talking about the Crusades of a thousand years ago when the Christians tried to win back a small portion of the land stolen by the jihadis.

 
Comment by William Teach
2015-03-03 21:02:02

So when the 5 conservative Roman Catholics on the Supreme Court

Yeah, that ultra conservative Sonya Sotomayor.

 
Comment by Jeffery
2015-03-04 00:47:27

Justice Sotomayer is not one of the conservative Catholics on the court.

Roberts, Scalia, Alito, Thomas and Kennedy

Citizens United v FEC
ATT v Concepcion
Shelby County v Holder
Burwell v Hobby Lobby

 
Comment by jl
2015-03-04 09:23:21

And what do those court cases you listed have to do with someone being allegedly conservative and Catholic? As far as Roberts goes, here’s one more case for you: National Federation of Independent Business v. Sebelius.

 
Comment by jl
2015-03-04 09:35:19

And in Burwell v. Hobby Lobby, the court simply said that Hobby Lobby fell under the protection of The Reigious Freedom Restoration Act. You know, that law that was passed overwhelmingly by Democrats and signed by president Clinton in 1993. So that had nothing to do with “conservative Catholics”, and wasn’t argued as a First Amendment case, either.

 
Comment by Jeffery
2015-03-04 09:54:19

In the n-Fib case, Roberts left the conservative Catholic reservation and joined the libs in defeating this Koch/Rove financed run at the ACA.

Roberts may do the same in the current case to preserve his legacy.

The other right wingers have little to lose.

 
Comment by JohnAllen
2015-03-04 10:03:13

Why the hell are you bringing up a straw man like the poor people that will loose their insurance if Obama Care goes out the window?

They will continue to get help when they need it just like before. Reducing the influence of government caused by Obama Care would improve health care for everyone. And lets not pretend that OC was about helping the poor it was about our dear government gaining control over more of the economy. If it was really about helping the poor that could have been done with far less disruption to the medical profession and the average citizen.

By the way I live on the west coast work in agriculture and find one of the big stresses on hospitals is using emergency rooms in place of going to a doctor’s office or a urgent care facility. Illegal aliens are a large factor in this problem in many areas here (far more so than in decades gone by). Enforcing our immigration laws would reduce this demand on our health care system…

 
Comment by jl
2015-03-04 20:03:34

So in other words you have nothing except you like to utter the words “conservative Catholics”. Duly noted. “Koch- Rove financed run at ACA.” There you go again, telling us allegedly who is financing something, but never saying why it’s wrong. That’s because you can’t, unless you can come up with some kind of proof that the Dem’s don’t do it themselves. Which you can’t. Which means, as usual, you have nothing.

 

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