Wednesday, November 11, 2020

ACA Ok? Once again, Chief Justice Roberts seems to dismiss an argument from intent

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In his June 2015 decision disposing of King v. Burwell, the last lawsuit before the presenting pending one seeking to cripple the Affordable Care Act, Chief Justice Roberts summarily disposed of the plaintiffs' patently fraudulent argument about Congressional intent. 

The suit was based on a drafting error. While the law envisioned states forming their own health insurance exchanges, but gave them the option of deferring to a federal exchange, key provisions referred only to "an exchange established by a state" as the vehicle for allocating premium subsidies to enrollees. The error was a biproduct of the political warfare that affected the ACA's drafting history, preventing an ordinary reconciliation of Senate and House versions.

Recognizing that spotlighting a drafting error would not suffice to convince the courts to cripple the ACA marketplace, the plaintiffs argued that the omission was no error. They claimed that while Congress intended to authorize state-based health insurance exchanges to grant premium subsidies to qualifying enrollees, Congress intended not to authorize the federal exchange to grant those subsidies. (At the time the suit came before the Supreme Court, 37 states were relying on the federal exchange, Testimony by those involved in the law's creation was unanimous that no one intended to bar the federal exchange from awarding premium subsidies.

Writing for a 6-3 majority, Roberts' disposed of the intent question thusly:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. 

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Yesterday the Supreme Court heard oral argument on an even more patently fraudulent suit, brought by 18 Republican attorneys general and governors, seeking to hobble or nullify the ACA. California v. Texas argues that when the Republican Congress zeroed out the ACA's tax penalty for individuals failing to obtain health insurance (provided that "affordable" insurance is available), it rendered the "mandate" to obtain insurance unconstitutional. Further, since the law as enacted in 2010 included a finding that the mandate was inseverable from the law's other provisions, the whole law in all its myriad parts (from Medicare funding formulas to chain restaurants posting calorie counts) must be struck down. This notwithstanding the fact that the Congress that zeroed out the penalty did not otherwise touch the ACA's core programs, the private-plan marketplace and the expansion of Medicaid eligibility, and that the marketplace has functioned without notable harm since the penalty was zeroed out in 2019.  In effect, the plaintiffs argue, the Republican Congress repealed the whole ACA either by stealth or by accident. 

Roberts appears equally skeptical about this argument from intent. In oral argument yesterday, Kyle Hawkins, arguing for Texas, made the case: "I think it's critical that, in 2017, Congress could have excised the legislative findings in 18091 [the assertion of inseverability], but it chose not  to do so. It could have excised -- 

Roberts interjected:

Well, but I mean -- I -- I certainly agree with you about our job in interpreting the statute, but, under the severability question, where -- we ask ourselves whether Congress would want the rest of the law to survive if an unconstitutional provision were severed. And, here, Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question. 

To paraphrase the kicker in Roberts' King v. Burwell decision: Congress repealed the individual mandate penalty, not the entire law.

Even better for the ACA's prognosis, Kavanaugh stated even more clearly that the mandate appeared severable from the rest of the law. Even Alito, a rooted enemy of the ACA, while suggesting that the intent of the Congress in 2017 couldn't be guessed at, at least acknowledged implicitly that the mandate has proved "severable" in fact:

At the time of the first case, there was strong reason to believe that the individual mandate was like a part in an airplane that was  essential to keep the plane flying so that if that part was taken out, the plane would crash. But now the part has been taken out and the plane has not crashed.

With the plane currently flying, will the Supreme Court crash it? Doesn't look like it. 


* The relative paucity of state-based exchanges (now slowly reversing) is in large part a result of this suit. Spotting the drafting error, in the years prior to the launch of the ACA marketplace, legal adventurers Jonathan Adler and Michael Cannon barnstormed red states, urging lawmakers not to establish a state exchange because the functioning of the federal exchange would be vulnerable to legal challenge. They were successful: while the ACA's creators assumed that most states would establish exchanges, most declined to. 

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1 comment:

  1. Republicans will often accuse Democrats of trying to "legislate through the courts"....

    But they are doing exactly that here, with these pathetic "gotcha" lawsuits as a substitute for not getting reform or repeal through Congress.