Before we hold a going-out-of-business sale for the rule of law, following yesterday’s King v. Burwell ruling at the Supreme Court, let’s review some between-the-lines highlights. The Scalia dissent already took care of the fundamental analysis of how the Court veered so far off course.
“It’s not personal. It’s strictly business (political business)”
Chief Justice Roberts certainly won an Olympic medal for legal gymnastics in carving out another unique path for one of the core provisions of Obamacare to stay in effect and keep the larger political enterprise of the Affordable Care Act in business. Pragmatically speaking, the alignment of both established commercial and political interests pointed in one strong direction — don’t get between them and the dispensing of taxpayer dollars for insurance subsidies. So, insurers, hospitals, and even most doctors: come on down. The politically discounted price to get your bills covered still is right. Even if it was launched by the left. Even a good portion of the House and Senate Republican conference membership had been checking the space under their desks for duck and cover drills in case they were forced to deal with quickly restoring the ACA’s federal exchange subsidies with only modest concessions at best in return.
“Oops, intent”
Throughout most of the litigation in King and a similar case in the DC Circuit, the plaintiffs chose a legal strategy and supporting arguments to build a counter-narrative to the effect that when Congress enacted the health law, it intended to provide very strong incentives to states to establish their own exchanges; particularly by explicitly conditioning exchange coverage tax subsidies on doing so. It was a good effort, but ultimately unpersuasive to a majority of the High Court justices. This history had some holes and contradictions in it, although not as many as the government’s alternative version of equivalent tax treatment for federal and state exchanges.
A more accurate rendering of what occurred on Capitol Hill in late 2009 was that congressional staffers working furiously behind closed doors with complicated and contradictory legislative provisions made some serious mistakes (aside from the ones involving policy substance; that list is much longer) in putting together the final language for ACA exchange provisions. But this type of “drafting error” in failing to carry out general policy goals is not correctable by a reviewing court. It needs to go back to Congress for reconsideration and possible correction.
We won’t ever know whether a straightforward – “They really screwed up, but decided to bluff their way through final passage of a flawed law” – argument would have worked better at the Supreme Court for the plaintiffs. But it remains the most likely fact-passed explanation of what occurred, along with the desperate political calculation by Democratic Hill leaders that they had to pass the law by any means necessary in March 2010, and then literally did it the only way they could! On Thursday, the Supreme Court followed suit, by upholding the law’s exchange provisions and misconnected scheme by any means necessary, too. The more legally valid ruling would have been to return this issue to Congress as a matter of political accountability for what it had previously done, and leave it to the House and Senate either to fix it directly or pursue other policy paths.
“The rules are … there are no rules”
Chief Justice Roberts truly stretched the bounds of statutory and administrative rule interpretation in his majority opinion. Even a 4th Circuit court of appeals that was clearly predisposed to dismiss the King plaintiffs’ claims found that the case for what the ACA statutory language meant was a far closer call, but sufficiently ambiguous to merit deference to the IRS under so-called Chevron stage-two analysis of administrative rules. But the High Court majority somehow managed to bypass any such review in this manner, explicitly saying this was a matter for the Court itself to determine, in finding that the most directly relevant clear language – “established by a state” – was ambiguous, whereas everything else buried in lesser provisions was clear-cut. That’s more of a judicial hash than the ingredients in Justice Scalia’s reference to “applesauce.”
The chief’s decision to explicitly edit and revise the earlier work of Congress purchased full ownership for the Court of the exchanges’ financing and regulatory mechanisms and what they produce. Who knew that the only successful effort to repeal and replace (and resuscitate) the original version of this key provision would happen by such a results-driven ruling, rather than by elected members of Congress? The ruling’s legalistic contortions are likely to do far more harm than simply keeping the ACA’s federal exchanges still on life support from federal taxpayers. The attenuated reasoning in the Roberts opinion also flashes a bright green light to the Obama administration and other rule makers of the future that almost anything is possible in revising a flawed statute after-the-fact, as long as the Court wants to support its broader policy purposes. Why bother with the messy politics of taking such matters back before Congress, when the Court’s editor-in-chief for Obamacare’s language, and perhaps other future national policy problems, is on hand to fix them as needed?
from AEI » Latest Content http://ift.tt/1GPVh93
0 التعليقات:
Post a Comment