Jonathan P. Baird

This piece appeared in the Concord Monitor on 2/25/2015 under the title “Just How Low Can The High Court Go?”

Probably, if you are like me, you were surprised to learn that the U.S. Supreme Court had accepted another case about Obamacare. Wasn’t that settled before when the Court ruled the law was constitutional? Isn’t this deja vu all over again?

Well apparently not. In a highly unusual move, the U.S. Supreme Court accepted the case, King v Burwell, for briefs and oral argument. The oral argument is March 4 and a decision is likely at the end of the Court’s term in June.

The reason this was unusual is that typically the Supreme Court will not hear a case unless there is a split in the federal circuit courts. That was not true in this situation.

The federal circuit courts who had addressed the issues raised have found against the plaintiffs The Supreme Court scooped the case up before the full D.C. Circuit Court had a chance to rule on it. A divided 3 judge panel on the D.C. Circuit had ruled in favor of the plaintiffs initially, but the full D.C. Circuit vacated their opinion and was widely expected to support the law.

One can only speculate on the reasons why the Supreme Court grabbed the case prematurely. It appears to be the worst kind of judicial activism, conservative variety. After a generation of people on the Right whining about liberal judicial activism, the Supreme Court is demonstrating that a right wing court can aggressively flex judicial activist muscles too.

At issue in King v Burwell is one four word phrase – “established by the State”. The plaintiffs argue that Americans who live in states, including New Hampshire, that decided to use the federally facilitated marketplace are not entitled to financial assistance. They say that Congress only intended for Americans to receive insurance subsidies through state exchanges.

Their case rests on the interpretation of an isolated phrase in the context of a much longer, comprehensive statute.

It is stating the obvious but the Affordable Care Act was designed to make health care coverage affordable for all Americans, regardless of their state of residence. Providing financial help to low and moderate income Americans is the law’s key method for making insurance premiums affordable.

Under the Affordable Care Act, every state is required to have a marketplace to help Americans shop for affordable coverage. While states can set up a marketplace themselves, the law directs the federal government to set up exchanges in states that do not.

The drafters of the law wanted the federal exchanges to be the same as the state exchanges. Regardless, these states would still get an exchange, just a federally facilitated one.

So where did the case of King v Burwell come from? A recent article by investigative reporter Stephanie Mencimer of Mother Jones Magazine sheds some light. A group of conservative lawyers hatched the legal theory behind King v Burwell at a 2010 conference sponsored by the American Enterprise Institute. The lawyers at the conference had one goal: develop a theory that could kill Obamacare.

A libertarian think tank, the Competitive Enterprise Institute, which is funded by the Koch Brothers, tobacco companies, oil and gas firms, big pharmaceuticals and conservative foundations, bankrolled the case.They also worked to recruit plaintiffs. At the 2010 conference, Michael Greve, the chair of the Competitive Enterprise Institute was widely quoted as saying the following about Obamacare: “This bastard has to be killed as a matter of political hygiene.”

The Competitive Enterprise Institute found four plaintiffs. A real problem is that it is almost impossible to show that any of them have suffered any harm as a result of Obamacare. A victory for the plaintiffs would mean they would end up with the right either to pay more for their health care coverage or to go uninsured.

It remains to be seen whether the Supreme Court will consider the matter of whether the plaintiffs do, in fact, have standing to sue. In separate investigations, the Wall Street Journal and Mother Jones have both raised serious questions about the plaintiffs and whether there is actually a case or controversy here, which is a jurisdictional requirement.

Two of the plaintiffs appear motivated by hatred of President Obama. One has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him”. The other referred to him on Facebook as “the idiot in the White House”. When asked what he got out of this case, he replied that the only benefit he would receive from the case was the satisfaction of smashing Obamacare.

The tragedy of King v Burwell is that success for the plaintiffs could wipe out health insurance for millions. It has been estimated that over seven million people could lose their health insurance in the 34 states that did not establish their own exchanges.

New Hampshire would be one of those states. Kaiser Family Foundation has done a state by state breakdown of the number of Americans who in 2016 could be denied financial assistance to help pay insurance premiums for the plans purchased in the federal exchanges. They estimate 88,072 enrollees in New Hampshire would be adversely affected.

That damage is immense. Not to mention the chaos that would result in the aftermath. I would predict a sizable surge in the ranks of the uninsured, a hefty spike in insurance premiums and a mad scramble in the states to try and minimize the harm.

While expectations of any kind of justice coming from U.S. Supreme Court decisions have largely diminished in recent years, a decision for the plaintiffs in King v Burwell would push things to a whole different level. Never before would a Supreme Court have taken away critically important benefits from millions. That would be a tragedy for the Court, its reputation and for the millions hurt.

King v Burwell can be looked at both from a legal and political perspective. From the legal side, there is a question of statutory interpretation. Lawyers are taught to read any phrase in a statute in the context of the whole text. None other than Justice Scalia has been a strong proponent of judges not engaging in “legislation” under the guise of interpretatation. To quote Scalia:

“No interpretive fault is more common than the failure to follow the whole text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”

King v Burwell seems a prime example of the fault Scalia identified – reading an isolated section of a statute outside the context of the whole. The plaintiffs are cherry-picking.

Plus, it is unlikely that any state would have chosen the federal marketplace if they had a clue all financial help could be withdrawn. All through the creation of the Affordable Care Act and up until recently, states had no notice that such a result was even a possibility. Penalizing states that opted for the federal marketplace now would be grossly unfair. Are we to believe that Congress intended to hide consequences of opting for a federal marketplace in an isolated phrase?

As a political matter, the case is simply an ideological vehicle driven by wealthy conservative interest groups who have long been looking for a way to take down Obamacare. Since no plaintiff can show any actual harm, the case should be seen for what it is: a sham. The conservative forces who have been hell bent on killing Obamacare have offered and are offering no viable health insurance option for the millions who will be screwed if the Court rules for the plaintiffs. The mission here is purely destructive.

In the aftermath of both Citizens United , the Court’s decision on election campaign contributions,and Shelby County, Alabama v Holder , its ruling on the Voting Rights Act, another awful decision would cement the Court’s reputation as a tool of the extreme right rather than a fair arbiter of law. It is both scary and sad to watch the Supreme Court these days.