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By Tom Cushing

Supremes find an acorn

Uploaded: Jun 25, 2015


The Supreme Court today rejected gotcha politics by a vote of 6-3. It turns out that the ACA/ObamaCare means what it forever intended, and health care subsidies may be made via coverage acquired on either the federal or state exchanges. In any but these most politically fraught times, this ruling would've been obvious to any first-year law student.

I am relieved that this bunch of Supremes got it right, and I am also concerned that I have to feel relief.

The case and controversy revolved around a single sentence in the massive, thousand-page bill, passed six years ago. It indicated that subsidies would be paid per coverage obtained on exchanges created by the State. Other parts of the law provide for the feds to create an umbrella exchange, for use by folks whose states cannot or refuse to establish their own such marketplaces. That's how just about everybody understood it.

Locally, the exchange is known as Covered California, but some 29 other states have relied on the federal version ? healthcare.gov, the one that had such a disastrous roll-out in 2013. States have gone with the feds either because their scale was too small, or more often because GOP Governors and legislatures have been distinctly hostile to anything associated with the "O" word.

So the question before the Court was: may subsidies Only be paid via state exchanges ? or may the federal exchange coverages, that do the same thing, also qualify? The Administration had no fall-back position ? both it and the healthcare insurers who have benefitted mightily from all this free new business would be out-of-options had the Supremes gotten it tragically wrong.

As such, Mr. Obama played chicken with the Court, throwing his steering wheel out the window at the podium as the opposing Parties headed for the collision. The coverages of millions of Americans who signed-up on healthcare.gov were in peril, as a sophistic ruling that ignored the obvious intent of the statute could have thrown those coverages into disarray.

Would that be such a bad thing? As columnist/Nobel economist Paul Krugman opined earlier this week, the ACA has performed exactly as advertised and intended, despite resolute, rearguard red-state opposition. Using as a benchmark the RomneyCare Massachusetts plan's decade-long experience that has reduced its uninsured rate to about 5% of that state's population, ObamaCare has dropped the uninsured rate from 17% to 10%, and to 7.5% in (mostly blue) states that have concurrently expanded Medicaid coverage. It's estimated that about half of the remainder are undocumented, and thus ineligible under the ACA.

Dr. Krugman concludes: "(N)otice that this been achieved while the deficit has been shrinking and we've been having the best job growth since the 1990s. Folks, this program works; not perfectly, but every single claim by its opponents ? it won't reduce the number of uninsured, it will cause soaring rates, it will explode the deficit, it will kill jobs ? has been proved false."

Now frankly, I don't think the opponents ever really believed in those arguments ? they were make-weights for the real concern: that ObamaCare must be stopped because it will work pretty well, and people are going to like it (just like they do for Medicare and other organized approaches in every other First World country).

So, yes it would've been so bad. I don't have poignant stories about life-saving interventions, but they're out there, aplenty, and more like them were put at risk in this case.

What the Court majority concluded, per its case syllabus is that, if petitioners' argument succeeded, "(t)he combination of no tax credits and an ineffective coverage requirement could well push a State's individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well."

That's courtspeak for the fact that when you consider the Act as a whole, this was an unfortunate grammatical omission, common in the law and easily resolved (ahem, fair warning: commenters who disagree had better be Boy Howdy sure They get Their grammar right ;-) ).

As the Court sometimes does when it agrees to hear a case 'improvidently,' Mr. Justice Roberts for the majority did attempt a face-saving gesture by characterizing the petitioners' pettifoggery as a strong plain-meaning argument. Except it never was. Advocates must always guard against over-believing in their own considerable facility to pass-off semantic sow's ears as formal wear. This argument was always over-technical and plainly at-odds with the statute's purpose, as well as just plain good sense. The Justices should not have put us all through these months of unnecessary dread, itself born of too many obvious politically doctrinaire rulings.

So, yeah, I AM relieved. The ACA is no panacea, but it is far better, saner and more humane than the previous unmanaged alternative. Now, if only they can get the same-sex marriage case right tomorrow (I'm predicting essentially the same 6-3 margin, with Roberts concurring on a statutory basis, as I'm postulating that he understands the game is over), it'll have been a good session.

It just shouldn't have to be this hard to do the right thing.

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