The Phony Legal Attack on Health Care
March 01, 2015, 4:00am


On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity that, if successful, will tear a huge hole in the Affordable Care Act and eliminate health insurance for millions of lower-income Americans — exactly the opposite of what the law was passed to do.

The central claim of the lawsuit, which was filed on behalf of four Virginians by a small group of conservative activists who have long sought to destroy Obamacare, is that the law does not allow tax-credit subsidies to be made available to anyone living in the 34 states whose health care exchanges are operated by the federal government, which stepped in when those states declined to set up their own.

This is, to put it mildly, baloney.

In the long, tangled history of the debate over the Affordable Care Act, no member of Congress ever indicated a belief that the law would work this way. To the contrary, the law explicitly provides for “quality, affordable health care for all Americans.”

And it has accomplished a good deal of this goal: More than 11 million people now have coverage under the law, and more than eight in 10 of them qualify for subsidies. In other words, broad availability of the subsidies is central to the functioning of the act. Without them, it collapses.

But because of the opponents’ purposefully blinkered reading of four words in the 900-page law the case is now before the Supreme Court.

The four words — “established by the State” — appear in a subsection of the law dealing with the calculation of tax credits. The law’s challengers say this means that credits are available only in the 16 states that have set up their own exchanges.

The challengers did not innocently happen upon these words; they went all out in search of anything that might be used to gut the law they had failed to kill off once before, on constitutional grounds, in 2012. Soon after the law passed in 2010, Michael Greve, then chairman of the Competitive Enterprise Institute, which is helping to finance the current suit, said, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

After the challengers found the four-word “glitch,” as they initially called it, they worked backward to fabricate a story that would make it sound intentional. Congress, they claimed, sought to induce states to establish exchanges by threatening a loss of subsidies if they did not. (Not coincidentally, the challengers also traveled state to state urging officials not to set up exchanges, thus helping to create the very “crisis” they now decry.) Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law. So it is no surprise that no one involved in passing or interpreting the law — not state or federal lawmakers, not health care journalists covering it at the time, not even the four justices who dissented in the 2012 decision that upheld the Affordable Care Act — thought that the subsidies would not be available on federal exchanges.

Many legal observers were surprised that the court agreed to hear the case at all. But despite several justices’ clear dislike for the health care law, it is hard to imagine how they could disregard their longstanding approach to interpreting statutes, which, as Justice Clarence Thomas wrote in a 1997 case, requires them to consider “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”

Reading the Affordable Care Act as a whole, it’s clear that Congress meant to provide subsidies on both federal and state exchanges. For one thing, why establish a federal exchange that doesn’t actually work? As an amicus brief submitted by a group of legal scholars put it, “Congress does not write statutes to fail.”

And yet the challengers insist that their bizarre, noncontextual reading of the law is the only possible one. A majority of federal judges who have reviewed the case have thrown out this argument. So should the Supreme Court. Even if the court were to consider the law ambiguous, under its own precedent it must defer to an agency’s reasonable interpretation of the statute’s wording. Here, that agency is the I.R.S., which has issued a rule affirming that subsidies are available no matter who establishes the exchange.

The challengers disingenuously say that Congress can go back and change the wording, knowing full well that Republicans on Capitol Hill hate the law almost as much as they do. The states that currently rely on federally operated exchanges could set up their own, but many — egged on by the challengers — have already refused to do that.

Whatever legal games the challengers play, this case has never been more than a ginned-up, baseless attack on one of the most important pieces of social legislation of the last generation. The health of millions of Americans hangs in the balance. And now it is not even clear that the four plaintiffs have legal standing to bring the lawsuit.

So how did the suit get so far? That is an excellent question, and only the Supreme Court can answer it.