Monday, June 30, 2014

Obamacare's Pending Moment of Truth

As bad as the Hobby Lobby decision was to the ACA, there is a far greater threat to it lurking down the road; one which could completely destroy the whole statute. Over at the D.C. Circuit Court of Appeals, three judges - two of them appointed by Republican presidents - are about to rule on whether the law allows the federal exchanges to provide subsidies to consumers.

The plaintiffs in the case, Halbig v. Sebelius, are arguing that the language of the statute is precise and clear when it says "through an Exchange established by the State under 1311." If they are successful in their challenge, then the subsidies in the 36 states - Republican states - that decided not to set up their own exchanges would be ruled invalid. That would mean millions of people who signed up for Obamacare thinking they would be entitled to subsidies would have to pay more for their healthcare plans. In plain language, such a ruling, if upheld, would be a sweeping victory for the law's opponents who have tried for more than three years to have it repealed.

If the oral arguments are any indication, then we are headed for another Supreme Court showdown. It was only two years ago that the law barely survived when Chief Justice John Roberts upheld the individual mandate as a tax. That decision infuriated conservatives and left even the law's supporters bewildered. The sixty-four thousand dollar question that begs to be answered is will Roberts, if he is once again the deciding vote, uphold the law or will he see it as a chance to atone for his "sin" to the far Right.

If I were a betting man, I wouldn't put too much stock in the former. Most scholars who looked at both the Roberts' and dissenting opinions have concluded, and I believe rightly so, that Roberts was this close to striking down the mandate, but abruptly changed his mind. It is speculated that the reason for his about face was that he refused to go along with Antonin Scalia and the other conservatives on the bench, who were in favor of chucking the entire statute. He felt that was excessive; that even though Congress did not include a severability clause in the law, it was still possible to strike the mandate and keep the rest of the law intact. This time, with no such burden to bear, I fully expect Roberts to side with his fellow brethren.

The only encouraging news is that the Court will not get the chance to hear oral arguments for quite some time. Assuming the three-judge panel rules against the law, the next stop would be for the Administration to petition the full D.C. Circuit to hear the case. And since four of those judges were appointed by President Obama, the likelihood of a favorable ruling is quite good. That means we may well have to wait until next summer to find out whether the Affordable Care Act will either survive intact or go down as the largest legislative footnote in history.

Remember when all those progressives were stubbornly insisting on passing a single-payer healthcare system? Well don't look now but they're shouting, "We told you so."

1 comment:

Prof. Walter Jameson said...

With regard to your paragraph number four, a few more pertinent details need to be mentioned. To anyone who knows Chief Justice Roberts' judicial philosophy, this decision was not a surprise. In fact, upon nomination in 2005, Roberts pledged that he would, in his own words, "respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions." In other words, if there is some way a law can be saved under constitutional scrutiny, he will make an effort to do so. Hence, the ruling that the individual mandate, if ignored, imposes a tax (constitutionally allowed), and not a penalty under the government's ability to regulate interstate commerce, which the Court found it (the government) had no authority to impose.

Finally, you stated: "He (C.J. Roberts) felt that (striking the entire law) was excessive; that even though Congress did not include a severability clause in the law, it was still possible to strike the mandate and keep the rest of the law intact." Actually, it's just the opposite. He knew full-well that striking the individual mandate would've effectively neutered the law, and that lacking a viable provision for noncompliance would've neutered the individual mandate. That's the path of logic he took in his decision.

Does all of this mean that Chief Justice Roberts fundamentally supports the ACA? Now that would be a real stretch. No, he probably realizes - as do I - that this law, in all of its convoluted detail, is not likely to survive for very much longer. He just didn't want the Court to be responsible for its demise; let it fall under its own unwieldy heft.

Yes, progressives insisted on creating a single-payer healthcare system. It made sense then, and it makes sense now. And, yes, we told you so.