Obamacare spawns the ‘too big to fail’ legal standard

SCOTUS King v Burwell

If one respected Supreme Court watcher is right, the arguments justices heard today in the latest challenge to Obamacare could be setting up a legal version of “too big to fail.”

The case, King v. Burwell, hinges on the law’s phrasing that subsidies are available to those who purchase health insurance on an exchange “established by the State.” Some of Obamacare’s taxes are also at stake. Because 34 states (including Georgia) declined to establish their own exchange and the federal government instead operates an exchange for their residents, a ruling against the government could turn the exchange-based insurance markets in those states upside down.

Lyle Denniston of SCOTUSblog suggests the questions from the justices to lawyers for each side could indicate how their private deliberations about the case will be shaped on Friday:

“From the time that the Supreme Court agreed in November to hear the challenge to subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states, the Obama administration and its supporters have talked darkly about the collapse of the entire ACA if that challenge succeeded. Both President Obama and his top health policy aide, Health and Human Services Secretary Sylvia M. Burwell, publicly stressed that the administration would have no way to fix the law if that happened.

“The uncertain thing, as the hearing approached, was whether that message would get through to the nine members of the Court who would be the deciders. If there was one dominant theme at the actual hearing, aside from how to read a complex federal statute, it was that a victory for the challengers would come at perhaps a serious loss — perhaps a constitutional loss, but at least a human and social loss in the end of the most ambitious (and audacious) health care plan ever enacted in America.”

This argument by the government and sympathetic justices amounts to the notion that, if a government program can simply become well-entrenched enough before any legal challenges reach the high court, it need not matter what the law, you know, actually says. The law is too big to fail.

This is as preposterous as the excuse offered for the law’s phrasing, that “established by a state” was really just a typo. Imagine this scenario:

The Georgia Legislature, acting on the recommendations of Gov. Nathan Deal’s education reform commission, next year passes a law saying state education dollars “follow the child to any public school.” Only, when the Department of Education implements the law, it actually sends the money to any school, public or private, of the child’s choosing. Deal defends the move as being consistent with his intent and says it’s obvious the law was supposed to say “any school” instead of “any public school” because it was intended to be available to as many kids as possible. In court a couple of years later, he has the state’s lawyers suggest judges can’t interpret the law’s language as it is plainly written, because tens of thousands of kids have already used the money to pay for private-school tuition, and a change would be too disruptive.

I suspect a great many of the people who side with the Obama administration in King v. Burwell would find themselves on the other side of such a scenario (and, yes, the reverse might well be true, too). But in neither case does the “too big to fail” argument hold water from a legal perspective. It does, however, risk setting a dangerous precedent in which the legislative and executive branches essentially say “my bad” if the proper interpretation of the law doesn’t match their wishes, and the judicial branch pulls out a big bottle of legal Wite-Out to fix it for them.

The court might well choose to do just that rather than forcing Congress to deal with the problem. But it will be another sign of erosion of those quaint notions of “separation of powers” and “checks and balances.”

Reader Comments 0

41 comments
Mr_B
Mr_B

"We have already lost a significant and critical portion of our freedom. "


I'm guessing that would be the freedom to mooch off of the rest of society for one's health care costs.

IReportYouWhine
IReportYouWhine

The US House of Representatives needs to send a memo to the supreme court and tell them "thanks but we are the ones who legislate as a direct representation of the people."  That's why obama can't fix it if he loses is because the people don't want it fixed. We have sent several messages. Do you see any democrats left in the House and Senate who voted for it? 


Besides which, it's already failed, name one thing they've said about it that turned out to be true.

Ficklefan
Ficklefan

This is how it goes and why government and government intrusion and control over the lives of all Americans grows and grows unabated. First of all, 4 very purposefully and intentionally included words,  out of 400,000 words of nearly  incomprehensible and poorly crafted nonsense created by Nancy Pelosi and Harry Reid, can and really do matter. 


I don't know if it was raised in today's oral arguments, but what Professor Jonathan Gruber recently said about those 4 words does matter, and it matters a lot. Gruber, an important co-author of the law,  and once a stalwart, shining light in the  eyes of the Dems -- but t who fell into instant anonymity as soon as he foolishly told the truth about what was really going on when the law was being written (who in the heck is that guy who visited the White House hundred times?), stated very clearly that the subsidies were intentionally conditioned on the requirement that the states create exchanges. The theory being that everyone is going to want this so badly, and the states will be under such immense political pressure to sign on that they will have no choice in order to get the subsidies. 


Of course, Gruber et al. are not the first people in American history to make the completely ridiculous assumption that if they love a theory as much s they do, every one else is just bound to love it to. Obviously, many of the states are not so enamored with the conditions required to get the subsidies. And so, here we are. 


The nation was, is , and will remain bitterly divided over this enormous boondoggle of a piece of legislation.   70% of Americans did not want this law to pass at the time it was passed. It was a cram down, pure and simple, that became effective in the end only by the skin of its teeth and then only by means of procedural smoke and mirrors. 


A law of this reach, this magnitude, affecting every American from cradle to grave, and affecting a full 1/6 of the American economy, should never have been passed by left wing ideologues and sympathizers by the thinnest majority possible in Congress. A law passed simply for the reason that they knew they would never have another chance to do it. 


And on top of that, because of the break neck speed and urgency under which it was passed, it we now have a sloppy, self contradicting piece of poorly written legislation passed only to "git 'er done" and the consequences of that purely political and ideological disaster of a law are going to haunt this nation for decades to come.  


We can only hope that Pelosi's words --  we need to pass this law so we can find out what is in it  --  turn out to be a prophesy of the ultimate demise of Obamacare. Words uttered by her without the slightest comprehension or sense of shame regarding how they might contradict  the reasonable expectation by voters that elected her that she was a competent and diligent member of Congress who would never vote for an unconstitutional law she did not bother to read before voting. 

DawgDadII
DawgDadII

"Both President Obama and his top health policy aide, Health and Human Services Secretary Sylvia M. Burwell, publicly stressed that the administration would have no way to fix the law if that happened."


Not that I believe this will be a deciding factor, but in isolation this would be a valid reason to overturn the bill, as it disavows the role of Congress and the PROPER role of the Administration. 


In my opinion, Obamacare has placed our ultimate liberty in dire jeopardy. We have already lost a significant and critical portion of our freedom. The Act could not have stood the test of time, even to this point, without the thousands of Administrative waivers, exemptions, edits, and adjustments, and the subsidies in question were nothing more than a political triangulation that is rightfully backfiring on the Democrats.


Two wrongs do not make a right. This Court has the potential to rip the Legal and Constitutional fabric of our Nation and Society in a way that will make Roe v. Wade look like a kindergarten primer in comparison. If they effectively overturn this key component of the Act, God help us, Congress and the Administration might just be compelled to do their jobs and hammer out a Constitutional compromise.  

MarkVV
MarkVV

@DawgDadII  Calling those four words “this key component of the Act” an exaggeration would be unbearably inadequate.

Infraredguy
Infraredguy

@DawgDadII This has nothing to do with legal issues, it's all about Obama racists who think the Constitution is important when us Liberals know our Leader knows best about what's good for his children ( or so I have heard )

Starik
Starik

@DawgDadII Are you referring to the freedom, if you get sick, or overdose, or burned, or get shot, or get paralyzed in a wreck, to go to the ER and get that and subsequent treatment handled at Grady for free?

RafeHollister
RafeHollister

The whole verbiage about the exchanges were written to encourage the states to establish them.  That is why it was worded that way, that is what they intended, encouragement/bribery.   The states did not follow suit, so that is why they went with federal exchanges, because that was the only fallback position they could come up with.  Gruber admitted that.  Now the regime wants the justices to ONCE again, ignore their intent, and rewrite the law to make it constitutional.

MarkVV
MarkVV

@RafeHollister 

RafeHollister would want us to believe that he was there and knows what was intended.

Anyway, rewriting the law “would make it constitutional?” Apparently RafeHollister somehow did not notice that the law has been shown to be constitutional.

Jefferson1776
Jefferson1776

Two things you hope your money spent gets nothing for,  health insurance and defense spending. 


Nobody wants to be sick or at war.

RafeHollister
RafeHollister

I was very much alarmed at Justice Kennedy's remarks that if we say the subsidies for people that do not get them through the state exchanges are illegal, we are then faced with the constitutionality of whether states can be treated unequally.  (Duh, yeah, you should have thought of that the last time)


Translation:  We can't rule these subsidies unconstitutional, because then the entire acts constitutionality comes into question and we don't want to go back to that. 


So, what is the point in the courts, if they allow unconstitutional acts to continue until they become too big to fail.  No checks on power from the Congress and none from the Courts leave us with a dictator.  Sad days are these.

MHSmith
MHSmith

What if the Court does rule in favor of these Neo-Republican insurgents? What will they do afterwards? Simply wash their hands like Pontius Pilate, turn, then walk away and say, tough luck!? 


The easy part has been raising H about Obamacare, the hard part is replacing it with something people will approve of as better than Obamacare. Otherwise bet on 2016 not being a GOP year.

LilBarryBailout
LilBarryBailout

@MHSmith

As Chief Justice Roberts said when mistakenly ruling Obozocare's taxes constitutional, it's not the court's job to protect Americans from the poor decisions they make at election time.

MHSmith
MHSmith

@LilBarryBailout @MHSmith 

What is going to protect the Neo-Republican insurgents from their poor decisions they make come election time 2016 should the Court "mistakenly rule" again?



Jefferson1776
Jefferson1776

Georgia should expand Medicaid and Set up an exchange,  the people deserve good gov't.

LilBarryBailout
LilBarryBailout

@Jefferson1776

Failing that, surely you will be first in line to make a generous donation to charity to help Georgians without health insurance.

MarkVV
MarkVV

Only those, who dislike Obama, Obamacare and low-income people so much that they would cheer for millions of people to lose their subsidies, can come up with this argument that the real legal issue given by the administration is “too big to fail.” Anybody else understands that the intent of the law was clear; not even the worst attackers have been able to come up with a logical reason why the subsidies might have been limited to state-run exchanges. With the current Supreme Court what it is, it is everybody’s guess what the decision will be, but the fact is that if the Court will base the decision on the intent rather than the mere letter of the law, it would not be without precedent.

HeadleyLamar
HeadleyLamar

@Kyle_Wingfield @MarkVV Anybody else understands that the intent of the law was clear;


Yes it was


And isn't it funny that the states who DID decide to build their own exchanges are doing wonderfully


Like Kentucky




Jefferson1776
Jefferson1776

@Kyle_Wingfield @MarkVV  GA was just being a butt towards the president, the people should be their concern.  A little cooperation would go a long way.

MarkVV
MarkVV

@Kyle_Wingfield @MarkVV 

That reason might have been surmised, but it does not pass the smell test. To believe that the authors of the law would have taken the risk of depriving people in some states of the subsidies just to force those states to set-up the state exchanges – when it was obvious that the option of only federal exchanges would exist –might be too much even for an ardent conspiratorialist.


Kyle_Wingfield
Kyle_Wingfield moderator

@MarkVV None other than Jonathan Gruber said this is how the law was written, although he later said that was a "speak-o." Then another video surfaced of him saying that. If it was a "speak-o," he does that a lot.

Kyle_Wingfield
Kyle_Wingfield moderator

@MarkVV "not even the worst attackers have been able to come up with a logical reason why the subsidies might have been limited to state-run exchanges."

Actually, one reason has been widely posited: It was an effort to pressure the states into building exchanges so the feds didn't have to do the work. Which is why another argument you'll find in that SCOTUSblog entry -- that ruling against the government would force the states to build exchanges -- also falls flat logically.

DawgDadII
DawgDadII

@MarkVV @Kyle_Wingfield Your argument makes NO sense. The authors of the bill had no problem setting up the IRS enforcement at the Federal level. To believe they could not have opted to set up a Federal exchange and eliminate the role of the States is --- pure denial of the patently obvious.

Mr_B
Mr_B

@Kyle_Wingfield @MarkVV Gruber may have intended that to be the case, but his intentions are irrelevant in the case at hand. The question is "what did the legislators who passed the ACA intend?"

HeadleyLamar
HeadleyLamar

  It is longstanding Supreme Court practice to interpret laws as a whole, rather than focus too much attention on one small section that might appear to conflict with the larger legislation. As one justice reminded us in oral arguments on an earlier case this year, “we look at the entire law. We have to make sense of the law as a whole.”


- Bookman


In other words they aren't going to throw the baby out with the bathwater. Just because in one section 4 words contradict the other 400,000

LilBarryBailout
LilBarryBailout

Obozocare is too screwed up to fix.

The left will double down on stupid and try to fix it by making it even bigger and more screwed up.

Time for adults to step in, starting with five on the SCOTUS.

HeadleyLamar
HeadleyLamar

4 words in a a 400,000 world law.


That is what all this ridiculousness is over.


Is Obamacare perfect ? No


But it sure as hell is a step in the right direction. We arent going back people. 



HeadleyLamar
HeadleyLamar

@LilBarryBailout @HeadleyLamar The fact that there are those 400,000 words in and of itself is ridiculous.


For most of us that isnt a problem. I can see where that many words would be a challenge for some though.


Gone with the Wind the novel has more words.


The Brothers Karamazov which I read in 10th grade is close.


If some are too stupid to read and comprehend the law don't blame that on others. 

Finn-McCool
Finn-McCool

You can purchase the text of the law in audio book format from Audible.com.


Nancy Pelosi narrates it....