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Brace Yourself For The Most Important Supreme Court Case Of The Year (Forbes.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell.  The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges.  This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.

But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington.  The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself.  You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work.  But if you think that’s how Obamacare was adopted, your memory is faulty.  The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea:  “But we have to pass the bill so that you can find out what’s in it.”  And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.

Even when a bill is passed, it’s just the beginning.  Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting).  And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law.  Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.

So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.”  Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states.  It has been described as a “glitch” or a “drafting error” by Congress.  And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well.   To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”

In fact, it is the other side that is straining to redefine clear terms.  Courts are bound by the “plain meaning” rule of interpretation:  unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word.  Clearly, if Congress meant something other than “established by the State” it could and should have said so.  And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else.  Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.

Ah, but here’s the problem.  By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support.  That is the blowback from a party-line vote:  no one from the other side has enough ownership to help you fix it later.  It’s like that old car mechanic commercial:  you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/27/brace-yourself-for-the-most-important-supreme-court-case-of-the-year/

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