As we are all aware, the disaster of a health insurance law we like to call "Obamacare" is facing a critical challenge to its existence in the Supreme Court shortly.
One of the 55,765 provisions in it (those cherries that Nancy Pelosi told us we'd have to pass the law to find out about) concerns the payments made by the Federal government, by which we mean "the taxpayer", to people below a certain income level to "help them with the payments." The rest of us call that "income redistribution", by the way.
Those payments have to pass two barriers. First, there is an income test; to receive money you have to be below a certain income level. Second, and herein lies the rub, is that such payments can only be made, according to the law, to people living where there is an exchange [i.e., a health insurance marketplace] established by the State."
If you have read this far, you are of course aware of the legal challenge and its ramifications. Some states have established their own exchanges as the law wanted -- but did not mandate them to create. So we have states with exchanges and others without. If the law makes the Treasury send checks to people in one state but not another, the infrastructure of the law will collapse.
So of course, the Administration is screaming that no, no, when the law was written the term "State" was meant to be "government" and, barring that, the law's direction for the HHS Secretary to establish exchanges for the non-compliant states makes them "established by the State" and, if that doesn't work, then gee, we can't have a whole bunch of the poor lose their insurance, can we (even though they didn't have it two years ago, and the Court can not take into account the impact of a ruling anyway; that's not what the Supreme Court does).
If I'm on the Court (and no one has threatened to put me there), I care about two things. First, does the content of the law violate the Constitution? Second, does the specific case (King v. Burwell) carry a misinterpretation or, conversely, a correct interpretation of Congress's intent in drafting the law?
Well, there's no doubt the Obamacare law is sufficiently constitutional as far as this case goes. One could argue, in a separate case, as the Supreme Court has upheld the validity of the law only because the penalty for lack of insurance is actually a tax, and tax bills must originate in the House, not the Senate, that the passing of the law via budget reconciliation violated the Constitution. However, King v. Burwell does not speak to that.
No, the issue is intent, and on that there appears to be some doubt, depending on whom you talk to. What is being asked is simply that, in Section 1311 of the law, where it reads "... and which were enrolled ... through an Exchange established by the State under 1311 ...", did Congress intend that "established by the State" referred to one of the 50 States?
So if I am Justice Sutton of the Supreme Court, I would be immediately on the phone to the U.S. Marshals Service asking them to round up one Jonathan Gruber, professor of economics at M.I.T., hand him a subpoena, and tell him to get his pompous butt to Washington -- now. I will ask him one question: "Mr. Gruber, you are under oath, and the penalty for perjury is pretty bloody heavy when you lie to the Supreme Court. Did Section 1311 of the law intend to refer to exchanges that were established by individual States, and is that provision, as you have stated before, in the law as a lever to force the States to comply?"
Mr. Gruber has stated his role in the development of the law many times. It may be that no one knows the genesis of it any better. Certainly no one else has claimed any more responsibility (we would say "blame") for its specific content, and the issues that appeared in its drafting, than Mr. Gruber.
Come on down, Jonathan Gruber, and tell the world under oath, at the risk of perjury and loss of tenure at my alma mater, exactly what that provision was intended to say.
I think that we all know what the correct answer is, and so does he. Come on, SCOTUS, give him a call.
Copyright 2015 by Robert Sutton
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