Opinion: Why the Supreme Court should throw out Obamacare’s extralegal subsidies

Remember when I said the new GOP majority in Congress would have no practical option on Obamacare except to take it apart piece by piece? Well, suddenly that seems so yesterday.

That’s because of this news (via National Journal):

“The Supreme Court is taking up another Obamacare case — one that could devastate the health care law’s coverage expansion.

“The justices on Friday agreed to hear oral arguments in King v. Burwell, a lawsuit that challenges the insurance subsidies at the heart of the Affordable Care Act. The suit argues that the subsidies — which roughly 80 percent of Obamacare enrollees received — should only be available in about half the states. …

“The lawsuit says that subsidies, which are available on a sliding scale based on household income, should be available only in states that set up their own insurance exchanges. The challengers point to a section in the law that refers to subsidies flowing through ‘an exchange established by the state,’ which, they argue, is a sign that Congress wanted to limit financial assistance to state-based exchanges.

“The IRS, though, has made subsidies available in all 50 states, including the 36 that chose to have the federal government run their marketplaces.”

This is the same lawsuit liberals have derided as much ado about a typo. They just can’t fathom that the drafters of Obamacare, back in those halcyon days of the Permanent Democratic Majority, might have simply miscalculated the law’s future popularity, or lack thereof.

Would the result of a ruling against the Obama administration in this case be messy, unpredictable, even chaotic? Yes. Millions of people who bought insurance on the federal exchange would lose their subsidies. That would render many of them unable to afford their plans, whose higher premiums (due to coverage mandates and other elements of Obamacare) have been masked by those subsidies. Suddenly, Obamacare would seem a lot less affordable to a lot more people.

Would there be pressure on those 36 states to build their own exchanges? Probably.

Would there be pressure on Congress to change the law? Probably.

Would Congress have leverage to force President Obama to accept other changes to the law? Probably.

Would any of these questions be resolved quickly or easily?

Are you kidding me?

All that said, there is one very important reason the court should side with the law’s challengers and eliminate the subsidies on the federal exchange: Laws should be executed the way they are written.

It would be a terrible precedent to allow Congress to write a law one way on a particular assumption (in this case, that it would help put political pressure on GOP-controlled states to go along with the law) and then claim the law meant something TOTALLY DIFFERENT when that assumption proved to be wrong.

Here’s a thought experiment for you. A key argument made by the law’s defenders is that a central purpose of Obamacare was to expand insurance coverage; ergo, its drafters wouldn’t have intentionally limited that goal by creating the possibility some people wouldn’t get coverage, regardless of how they actually wrote the law.

Sounds reasonable, right?

Well, what if the drafters of the 2009 “stimulus” bill tried to come back later and say, “We know the law specifies a certain amount of money, but the economy didn’t recover as quickly as we assumed it would — and that was the whole point of the exercise, after all — so now we’re going to spend twice that amount in the bill.” Or imagine the same scenario with tax cuts: The cuts didn’t boost the economy, so now we’re going to cut more.

Seem a little less reasonable now?

The law should mean what it says. Lawmakers should write the law to say what they mean.

Maybe some liberals are up in arms about this challenge because they think it does say what they meant, or close enough. But some of them may also be upset because they know a reworking of Obamacare after an adverse court ruling probably wouldn’t work out to their liking. Suddenly, the prospects for a large-scale overhaul of Obamacare, at the very least, seem much brighter.

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Reader Comments 0

131 comments
JackClemens
JackClemens

I do believe it was written as intended, as you point out, to put pressure on Republican led states to climb on board. If it's overturned the whole thing falls apart rather quickly.

Trefusis
Trefusis

Thank you, Kyle, for introducing the crucial term "extralegal" into this discussion.  So far as I can see there's a lot more extralegal stuff going on here than meets the eye.  And I do not wish to tick off my Democratic friends but more than enough of this amounts to presidential abuse of power, to impeachable offenses.  Would that it were not so. And no, I'm not militating for impeachment; am merely stressing that the President is in grave breach of our Constitution.  Moreover, I suspect this is why Holder took his leave.  Complicity. 

LogicalDude
LogicalDude

" the prospects for a large-scale overhaul of Obamacare, at the very least, seem much brighter."


Hopefully to the benefit of those who are left out the insurance loops currently.  


Unfortunately, the Republicans sound like they want to gut it and reverse it to put millions back out of insurance coverage. 

Not approved because of pre-existing conditions?  Thanks Republicans!

Cut because of costing the insurance companies too much?  Thanks Republicans! 


Aside: Thank you for pushing for restored usable comments.  May I suggest renaming it "Relevant Discourse" instead of "Story Chatter"? 

Claver
Claver

I think a lot of Republican politicians have been perfectly happy with the status quo: take some symbolic votes to repeal and use the issue to rally the troops.  But, the actual prospect of either letting millions of people lose their insurance or taking action to let them keep it and 'owning' some version of Obamacare, that is a no win situation.  Governing is not always as fun as back-benching.

Visual_Cortex
Visual_Cortex

@Claver


I'd tend to agree, but I'm not going to assume anything. I believe a lot of the GOP legislators would be glad to destroy the village in order to save it, so to speak.

Visual_Cortex
Visual_Cortex

"what if the drafters of the 2009 “stimulus” bill"


Jeez, really? Bunny ear quotes, still, five years later?

MarkVV
MarkVV

People who write tirades about “socialist agenda” should either get some education to know what those words mean, or have their heads examined.

zekeI
zekeI

The Court should throw the entire redistribution-socialist agenda scheme out as NOT CONSTITUTIONAL! Health care is NOT A CONSTITUTIONAL MANDATE TO THE CENTRAL FEDERAL GOVERNMENT!

Visual_Cortex
Visual_Cortex

@Tiberius-Constitutionus


I imagine to a dyed-in-the-wool Bircher type, the Heritage guys are crypto-Commies. (That's what they used to say about Eisenhower, anyway.)

Claver
Claver

@zekeI The Supreme Court already ruled on the Constitutional issues.  They are not taking those up again.  This is merely a statutory interpretation issue.

IReportYouWhine
IReportYouWhine

 Republican strategists are gleeful about the prospect of facing the same leaders in the 2016 cycle.

"What’s that they say again about the definition of insanity?" Daniel Scarpinato, spokesman for the GOP's campaign arm, said in an email blast after Pelosi announced her leadership bid. 


It didn't bother them one bit to take down AmeRica on behalf of their own political power and now they take out their own political party, on behalf of political power.


The worst generation evah.

straker
straker

I Whine -  "stealing from the people"


Just when I think your posts can't possibly get any dumber, they do. 

IReportYouWhine
IReportYouWhine

 the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn’t steal from the people; the freedom to live as you choose.


obama doesn't even support these^^ beliefs in AmeRica, except for the stealing from the people part.

MaryElizabethSings
MaryElizabethSings

From President Barack Obama’s speech at Cairo University in Cairo, Egypt,  June 4, 2009:


“America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn’t steal from the people; the freedom to live as you choose. Those are not just American ideas, they are human rights, and that is why we will support them everywhere.

“For we have learned from recent experience that when a financial system weakens in one country, prosperity is hurt everywhere. When a new flu infects one human being, all are at risk. When one nation pursues a nuclear weapon, the risk of nuclear attack rises for all nations. When violent extremists operate in one stretch of mountains, people are endangered across an ocean. And when innocents in Bosnia and Darfur are slaughtered, that is a stain on our collective conscience. That is what it means to share this world in the 21st century. That is the responsibility we have to one another as human beings.

“This is a difficult responsibility to embrace. For human history has often been a record of nations and tribes subjugating one another to serve their own interests. Yet in this new age, such attitudes are self-defeating. Given our interdependence, any world order that elevates one nation or group of people over another will inevitably fail. So whatever we think of the past, we must not be prisoners of it. Our problems must be dealt with through partnership; progress must be shared.”

----------------------------------

“Toward which the conscience of the world is tending — 
A wind is rising, and the rivers flow.”  NC writer, Thomas Wolfe

IReportYouWhine
IReportYouWhine

“She is smart, tough and savvy and has a capacity to learn from failure and adjust. But . . . people are bored of her and feel like she has been talking at them forever. . . . She is a dull, grating, inauthentic, over-eager, insipid elitist with ideological blinders yet no particular vision and is likely to be reduced to running on a dubious promise of experience and competence while faking idealism and hope — a very common type of presidential contender in both parties, but one that almost always loses.”


George Will talking about hillary^^.


fact

RantNRave
RantNRave

"According to whom, runt?"


WHINEY


ACCORDING TO 66% OF 

PARENTS........................


THAT'S WHO !!


heeheeheeheehee



RantNRave
RantNRave

WHINEY


Two-thirds (66%) of parents with a child in Medicaid/CHIP say they are “very satisfied” with their coverage, compared to less than half (48%) of those whose children are covered under their employer plan.



IReportYouWhine
IReportYouWhine

 But the current Court has shown growing impatience for this Administration’s abuses of executive authority. “It is not our job to protect the people from the consequences of their political choices,” the Chief Justice famously wrote in the first ObamaCare case. We are about to find out if he thinks his job is to save the President from the consequences of willfully rewriting black-letter law.


http://online.wsj.com/articles/obamacare-goes-to-rewrite-1415404718

IReportYouWhine
IReportYouWhine

For starters, even today, nobody knows precisely what Jarrett does in the White House.



Hate on AmeRica.



It ain't that hard to figure out.

IReportYouWhine
IReportYouWhine


Medicaid Is Worse Than No Coverage at All New research shows that patients on this government plan fare poorly.



http://online.wsj.com/articles/SB10001424052748704758904576188280858303612



Public Approval of Health Care LawPolling 
DataPollDateSampleFor/FavorAgainst/OpposeSpreadRCP Average10/1 - 10/27--38.151.6Against/Oppose +13.5

I should now also mention the outcome of the 2014 midterm elections. And the travesty that is the Veterans health administration. 

Republicans have a mandate and a duty to right the wrongs. The fact of life, and of AmeRica, is that we take care of our needy and poor. We take care of the world's poor and needy. Not just say we do and then don't, we actually do it. So this sham of a health care system being corrected is job #1. Hard choices need to be made. Cut the bureaucracy, cut the regulations, cut the mindless paperwork. The AmeRican people do not need their government to watch their every move and make sure they do the right thing. Especially when the GOVERNMENT IS THE ONE DOING EVERYTHING WRONG. Get them OUT OF OUR LIVES and let us turn this thing around so that everyone gets the best health care possible, like it used to be. Before the government got involved.

JamVet
JamVet

Only the most wealthy among us should have health insurance.


Everyone else should just use the nation's Emergency Rooms.


That is what they are they for.


And the paraphrase the worst VP in American history, "You treat the nation's sick and injured with the dysfunctional health insurance system that you have, not a decent health insurance system they you may want or have at some future time."

InTheMiddle2
InTheMiddle2

@JamVet  Jam,  read on the blog the you moved to SF, is that true? Hope you are well and that the move went smoothly ( having moved almost 20 times in my life I know that it rarely is). Look forward to spirited discussions.


Kindest Regards

Middle.

IReportYouWhine
IReportYouWhine

 Meanwhile, by granting cert, the Court is signaling that at least four judges are probably prepared to rule against the government.  Now, maybe they’ll change their minds later.  But I doubt it.


http://www.bloombergview.com/articles/2014-11-07/obamacare-courts-death-yet-again


If they agreed with the DC courts ruling, they would have declined to hear the case. It would be wise for the Republicans to have the alternative at hand, ready to implement. 



Tiberius-Constitutionus
Tiberius-Constitutionus

Problem is, fascist Repugs don't have an alternate proposal, have never had an alternate proposal, and never will have an alternate proposal. You will see Repugs overplay their hand.

MaryElizabethSings
MaryElizabethSings

@InTheMiddle2 


Again, in all due respect, those are just generalized, platitudes of thinking.  There has in actuality been a systemized change in the financial structure of our nation which has adversely affected the poor and the middle class in the past 40 years.  Think of the system of Jim Crow in the South. No reasonable person would blame black people for not accruing wealth and educational parity in that system.  Likewise, today, there has developed, by design of the wealthy few, a systemized economic framework advantageous basically to the already wealthy only in America.

InTheMiddle2
InTheMiddle2

@MaryElizabethSings  I am all for being convinced. Do me one small favor if you will. Demonstrate how Bill Gates, because of his wealth, is stopping anybody in the State of Georgia from taking care of themselves. Theory and reality often do not coincide, you are dealing with theory and excuses, I am dealing with reality and accountability.

MaryElizabethSings
MaryElizabethSings

@InTheMiddle2 


The existence of ALEC members in Georgia's legislature is no theory or excuse but a reality.  The election of David Perdue to be Georgia's senator is reality.  Do you really think that David Perdue is going to serve the best interests of the middle class in Georgia or will he serve primarily his own financial interests as he has done all of his life?  I do not begrudge Bill Gates his wealth but we must understand, and have societal vision enough to understand, that social programs will help to lift the poorer and working class people of our state and nation to the point that they can be more self-sufficient. Programs such as Obamacare help to do that.  If Medicaid were expanded in Georgia, more people of the working class status would have a boost that would keep their health viable and help them from going bankrupt when they have a long-lasting medical crisis. Expanded Medicaid would also keep jobs created for them and others in Georgia through having employees in hospitals that are now closing because Medicaid is not expanded in Georgia.  Why has Medicaid not been expanded in Georgia?  Because ALEC is working against it, just as are the Koch Brothers, and Georgia's Republican legislators who are ALEC members (over 30, the 3rd largest number in the nation) are determined that it will not be expanded here and even passed legislation to ensure that it is not.  That is reality, not theory, and that is only one way that that social program - being denied - will hurt the poor and working classes to rise to the middle class.  I could list many other ways, but there is not space to do so on this blog.

InTheMiddle2
InTheMiddle2

@MaryElizabethSings  This is where you and I differ. WE both fundamentally agree that it is better for the poor to have better lives. We can all agree on that. Where we split is not in the problem, but the solution. Where you see cards stacked against, I see an opportunity to overcome, where you see a reason to fail, I see a need to do better. The wonder of this country is that when you are born, there is not limit to what you can achieve so long as you never listen to those that will tell you that you are doomed to failure because of the Koch brothers, or framework tilted to the rich etc. Those that are trapped in this deceit are doomed to a failed life. Those that throw off the yoke placed on them by naysayers will grow and prosper in their own way. Becoming a millionaire is not a necessity. In reality, only the government can directly impact your life. Only the government can come into my house and take from me, my children, my wife, just to GIVE to someone who would rather spend their days resting their bottoms and blaming the world. Why do think it is okay to take from what I have worked for and earned, just to give to someone that will do nothing, but be a victim.

MaryElizabethSings
MaryElizabethSings

@InTheMiddle2 


We do disagree, Middle, but I will have to close out our conversation with this thought.  It is my opinion that all of the thinking that your have stated above are talking points against our government perpetuated by those whose agenda is to use you and others to benefit themselves, alone.  Did Sonny Perdue really help many Georgians to thrive or did he use his political position to serve his own financial interests through his political contacts? We have a crisis in our nation now, of division, because the far right has had a propaganda message for several decades that "government is the problem" as Ronald Reagan stated, even as he used his political "government" positions to enhance his own wealth.  I don't believe that propaganda.  If we are against our own government, then we are against America itself.  I implore you to look deeper into the reality of the greed that has been present in our nation for several decades and the far right disclaimers of our government, using our government to secretly enhance, through greed, their own wealth.  Don't buy into the propaganda you have stated, above, I implore you.  The Presidents who have been the truest public servants like Washington, Jefferson, Lincoln, FDR, LBJ have served our nation well.  They have all supported our government in uplifting the lives of all Americans, instead of using the Presidency to enhance their own personal wealth.

MaryElizabethSings
MaryElizabethSings

P.S. In fact, Jefferson and Washington, born into wealth, both died without the wealth they had once had because they refused to allow their names, as public servants of our government, from being used to accrue personal wealth.  They, instead, put all of their efforts into building an America where "all are created equal" in God's eyes.  The slavery present in their era of America's history, they both wished to see eliminated - because it was a moral imperative to do so for our nation's ideals - in the evolution of time.

Jimmyliscious
Jimmyliscious

@MaryElizabethSings So do you prefer communism? I mean, folks who do the right thing, go to school, repay their student loans, have kids that can afford them etc. should open their wallets to dollar raise a family that they don't know?

MaryElizabethSings
MaryElizabethSings

@Jimmyliscious   You present ideas that are a dichotomy of extremes.  In addition, do you not see that the very wealthy have used the political tactic of "divide and conquer" by having you think that "your money" is going to the "welfare queens" which pits not on "you " against them, but "white against black" so that they can swoop in on that negative "divide and conquer" campaign and put it politicians, like David Perdue, who will play their game well of money going toward their (the top 1%) interests.  Next I will post part of a review of new book by former columnist for the NY Times, which will describe better than I have what trend toward greed our nation has been going toward for the very, very wealthy in the past 4 decades.


Also, your taxes are not going to the welfare queens, which is a figment in you mind essentially, created by the far right.  Your taxes are going for roads, public schools, the CDC, the Dept. of Defense, the VA, the Food and Drug Administration, etc.

MaryElizabethSings
MaryElizabethSings

@Jimmyliscious 


Jimmy, here is part of a review in the New York Times Book Review Section, today, November 9, 2014 of former NY Times columnist, Bob Herbert's, newly released book, entitled, "Losing Our Way: An Intimate Portrait of a Troubled America":


"Losing Our Way," is a brave call to action - not simply to put people back to work, but also to link that work to the necessary interests of an egalitarian society.  This means investing in what we've catastrophically undervalued: our bridges and highways and tunnels, our public schools, our fellow citizens.  Herbert approaches this monumental task the same way he approached such unpopular issues for almost 20 years in his Op-Ed column at this paper: case by case, week after week, with steady resolve.  The shortsighted policies and unchecked greed that have resulted in the abandonment of the poor are now destroying the middle class, and Herbert remains will to state, very clearly, what he sees.


After leaving The Times in 2011, Herbert traveled across America, visiting middle-class peopled overwhelmed by the consequences of 'the unabashedly selfish, terminally competitive, winner-take-all philosophy that has steered U. S. policy for most of the past 40 years.'  In Minneapolis, he finds Mercedes Gorden, a 38 year old former corporate employee who, after her car plummeted more than 60 feet into the Mississippi River in the I-35W bridge collapse of 2007, has spent most of the last seven years learning how to coexist with debilitating pain; in Bushwick, Brooklyn, Jessica Gallardo, a teenager becoming ill with exhaustion from a night-shift bakery job that tenuously keeps her family from homelessness, but makes it impossible for her to function in high school. . . .


This is not a showy book.  It's a book directed at the mind, not the heart.  It assumes our interest in wanting to understand how we got here.  This assumption is another expression of Herbert's focus on the long-term view.  He sees the connection between the perpetual assault on the poor and the newer incarnation of that assault on the middle class. . . ." 

Jimmyliscious
Jimmyliscious

@MaryElizabethSings

It is my opinion that all of the thinking that your have stated above are talking points against our government perpetuated by those whose agenda is to use you and others to benefit themselves, alone


So you want my money to fund someone that has 3 kids by 3 different dads with no intent of EVER bettering themselves? Here's a thought, why don't the teachers union dues get confiscated and redistributed. You talk about shared pain? Then why do you complain about your healthcare costs going up? Do you educators and former educators garnish some special status that makes you entitled to cheap healthcare? I no longer have cheap healthcare thanks to the ACA. If i really get sick, its now a multi thousand dollar tax increase on me. Here's a thought. Why don't you have Obama cap what the 1% can take home every year. Maybe grant them 5 million a year, then put a 90 percent tax on the rest and redistribute? Oh, he can't do that or the dems will never get re-elected.

NorthAtlanta
NorthAtlanta

Love Klein's tweet above.

Kyle, please tell the IT people that the "back" button doesn't work on this site most of the time, and the AJC.com articles are not shown as such, so you only find out they're behind the pay wall when you click on them.

Dusty2
Dusty2

Bah humbug to the utmost!  This place is no fun anymore. There is something better to do than search out this mess plus read facebook or twitter or any of the new play toys.  Could we just have  straight forward news and blogs without all  the decorations, directions and dilly dally distractions to demean us?


Oh the topic!  Let's hope we can remove all the president's  non-constitutional work and get back to running the country legally and efficiently.  The lack of wisdom in the White House is ruining this country. Congress must stay strong to offset the juvenile judgments of the so-called Executive branch. ,

InTheMiddle2
InTheMiddle2

I would love to see the SOTUS not only scuttle this, but I would be thrilled if we could somehow eliminate foodstamps, section 8, free phones, in fact welfare assistance of all kinds.

MaryElizabethSings
MaryElizabethSings

From Paul Krugman's NY Times column this morning, entitled, "Triumph of the Wrong":


http://www.nytimes.com/2014/11/07/opinion/paul-krugman-triumph-of-the-wrong.html?ref=todayspaper&_r=1


Then there’s health reform, where Republicans were very clear about what was supposed to happen: minimal enrollments, more people losing insurance than gaining it, soaring costs. Reality, so far, has begged to differ, delivering above-predicted sign-ups, a sharp drop in the number of Americans without health insurance, premiums well below expectations, and a sharp slowdown in overall health spending."

InTheMiddle2
InTheMiddle2

@MaryElizabethSings  Whatever happened to people being responsible for themselves and taking care of themselves. Nobody between the ages of 18 and 65 that is not affected by a severe disability should need to live off somebody else.

MaryElizabethSings
MaryElizabethSings

@InTheMiddle2 


It seems to me that you perceive in generalities.  Everyone whom I know, including liberals, believes in "personal responsibility" as a moral code.  However, I believe you are missing seeing the inequitable financial structure that politicians in America have now embedded into America's financial framework.  Something is terribly "off" financially in our nation when the wealth of the top 85 richest people in our nation is equal to that of 3.5 billion of America's poorest citizens.  Those 3.5 billion are not lazy nor are they "takers"; the power structure of this nation, especially the top CEOs and Republican politicians have deliberately skewed America's financial framework to benefit the billionaires and millionaires of the U. S. since the early 1970s stealthily. We should all be fighting against allowing America to become another South American nation.  Obamacare helps some Americans not only to simply stay alive, but to have a chance to climb into, or remain in, the middle class.


Bill Gates, a Democrat, has benefitted from this skewed financial framework now in America.  If Gates spent $1 million a day it would take 218 years to spend his fortune per USAToday.

MaryElizabethSings
MaryElizabethSings

@Captain-Obvious 


I was wrong in stating that my numbers referred only to America.  Those numbers were for people on the planet not just for America.  However, I stand by everything else, and the essence, of what I wrote in my post about the inequality of income being skewed toward the top CEOs in America since the early 1970s, when ALEC was formed with support by the Koch Brothers and other CEOs of wealth in conjunction with mainly conservative politicians.  This is no "worked up" on the spot opinion that I shared.  I have studied, in much depth, this inequitable financial distribution of wealth in America skewed toward the top 1%, for more than a decade.

MaryElizabethSings
MaryElizabethSings

@InTheMiddle2 


No, it is not sour grapes on my part.  It is my analysis (and that of many of the columnists whom I read) that the financial framework, skewed to benefit the top 1% of our nation has changed in the past 3 or 4 decades.  Look how little of the wealth of this nation is now "trickling down" to the middle/working class and the poor. Part of that is globalization and technology, but a major part of it is political ideology.  Look at Georgia's ALEC dominated Republican legislature, as one example.  Yet, the unemployment rate is much higher in Georgia than in the nation as a whole, which is now at 5.8% nationally.  Georgia's unemployment rate is a good 2% points above that national percentage.  Yet, the people in Georgia do not see why Georgia's unemployment rate is so high. They have voted against their own best economic interests, as a result.  I am simply trying to inform.  No sour grapes coming from me, truly.

InTheMiddle2
InTheMiddle2

@MaryElizabethSings  sour grapes. Nothing wrong with being rich or having more. If you want more, get it. Don't demand the government take from somebody else just so you can have free stuff.

Jimmyliscious
Jimmyliscious

@MaryElizabethSings Premiums below expectiions for those that receive subsidies. If it's so great, why did Obama threaten healthcare providers to not reveal their costs until after Nov. 15? Everyone on this blog that likes Obamacare is a subsidy taking moocher. Oh and Paul Krugman, an idealistic journalist, doesn't live in the real world. NYTimes will be out of business unless it starts getting propoganda subsidies from Obama.