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The Law May Be an Ass: The Implications of King v. Burwell

SCOTUS heard oral arguments on King v Burwell, the case that once again has the ACA on life support. That’s because the future of the law depends on four words – “established by the state – in the midst of this long and complicated statute. Dahlia Lithwick breaks down the oral argument here.

If the law survives it will be because either Justice Kennedy or Justice Roberts join with the Court’s four liberals to uphold the law. Roberts asked one question – can a future administration change the interpretation of the law? – which may suggest that he will defer to the executive branch interpretation.
For Justice Kennedy, he was concerned that the challengers’ interpretation of the law raised federalism problems - that it secretly set up a draconian choice for the states.

The consequences are severe for the millions of people who receive subsidies under the federal established federally run exchanges. If the ACA enters its death spiral, then the economies of states like Arkansas will be devastated. Justices Scalia and Alito poo-poohed these concerns by saying that Congress would surely act to prevent such “disastrous consequences.” But as Dahlia Lithwick points out:

One has to travel pretty far down the legal rabbit hole to read this statute the way petitioners do, or to find contemporaneous history to support it. But rest assured that way down in that rabbit hole—and perhaps only there—state exchanges get set up in six months, Congress gladly tweaks Obamacare, and states that all-but changed their state motto to “Hating on Obamacare since 2010” joyfully jump on the bandwagon.

Even if such fantasy were possible in theory, can it overcome the kind of implacable ideological resistance to it that says the law was written “not by dead white men but by living white women and minorities.”

That the Court took this case is, well, shocking. There was no conflict among the circuits (all agreed that the four words had to read in the context of the entire statutory scheme) and there was no overriding public need (Think Bush v Gore.). Indeed, it is not even clear if any of the challengers will be injured by the law. At worst(?), they will “have to use federal tax credits to purchase their unwanted affordable health care.” Rather, as Linda Greenhouse pointed out when cert was granted,

“This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. …Not so this time. There is simply no way to describe what the court did last Friday as a neutral.

The Court “permitted itself to be recruited into the front lines of a partisan war” putting its honor and integrity at stake. A decision that adopts the challengers argument will be a sure sign that the Supreme Court is simply a partisan institution and making the law truly an ass. Even if the law survives, the damage to the Court has already been done.

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