Supreme Court Allows Nationwide Health Care Subsidies
nytimes.com
nytimes.com
Any time you read about a major court case striking down a law, or some statue, you will typically see it accompanied with a very painstaking argument about how the judiciary cannot and must not simply change or reinterpret what is perceived to be a "broken" law. They can follow the law as it is written, or they can strike it down as unconstitutional, but they can never simply say, "I don't like the effect this law would have here, so I will just ignore it."
This is like a compiler simply ignoring explicit and functional lines of code because they lead to a crash. It might sound great that the program avoids a crash, but if the program isn't running it's own code anymore, then what code is it running?
In this case, the prevailing argument was that the law as written would destroy so much of what had evolved into regulatory practice so that they couldn't bear to hold the Executive to its own rules. As you can imagine, this is a difficult precedent to set because it opens up an impossible hole in the innermost workings of the system design. I'm not a historian on this subject so I can't really point to previous examples, but my understanding is the only "proper" fix here is an act of congress, and Scotus is rightly peeved to be put in the position where the executive branch is asking them to clear up a mess like this.
Another way to think of it -- it is congress's fundamental duty to write and vote on the bills, and executive branch's duty to sign them into law. The judicial must not and cannot write their own laws, no matter how much another branch might plead with them to do so in order to get them off the hook of actually doing their job. If the judiciary can rewrite laws that don't suit the executive, it negates congress by giving the executive and judiciary branch far too much power. To those who say it was necessary in this case, just "be careful what you wish for."
"and in the American system of democracy, legislative questions are decided by the Supreme Court."
This is a mischaracterization of the action the court took on this case. The court did not 'write their own law' -- they forced the legislature to follow what was obviously the intent of the law despite "inartful wording."
"John McDonough, who worked on the Health, Education, Labor and Pension committee during the health reform debate, wrote in an email. 'There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.'" [0]
Your solution -- forcing Congress to "do their job" and fix this typo of a mistake -- would come at the cost of the system itself as well as the healthcare of more than 8m people. Such pedantry is not only unwarranted, but cruel.
[0]http://www.vox.com/2014/7/23/5927169/halbig-says-congress-me...
>This is the tradeoff explained by Jonathan Gruber, a professor at MIT and an “architect” of the ACA, who acknowledged that “if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”
The broader context is extremely important. Some people portray the law as written as a mere typo, or oversight -- that Section 36B providing tax credits / subsidies only for exchanges "established by the states" shouldn't mean what it actually says, because it was never "meant to".
What this essay reminds us of, is in fact there is a legislative balance which was struck here, and a choice which was actually relegated to individual states, similar to the choice to expand Medicaid which each state [currently] makes individually.
The ACA was written such that states could opt-in to ACA taxes on businesses in order to pay subsidies for individual plans by establishing an exchange, or they could opt-out of those same taxes and subsidies by not establishing an exchange. That plain english law has now been throw out to allow the Federal government to impose the subsidies on all states, and likewise, impose the taxes on larger employers. Whether you personally believe in one system over another is a separate matter than whether it's a good thing for the Supreme Court to be calling the shots.
When the IRS decided that the Federal exchange qualified individuals for the subsidies, against the plain English meaning of the actual law, the IRS was also subjugating the states' designated right to decide whether they want to provide subsidies for individuals and likewise taxes/penalities on large employers whose employees end up claiming those subsidies.
Part of the problem is the law is simply too complex for even a concerned citizen to wrap their heads around. How many people understand that large employers (50+ employees) are directly penalized on an employee-by-employee basis for each of their employees who qualify for and claim a subsidy on the marketplace? Believe it or not, the subsidy dollars don't just get printed by the Treasury -- they are assessed directly against the employer.
If you don't understand the dynamics of the law, it may seem like the "established by the state" is a pedantic distinction. If you spend about 80 hours actually studying the law you will more likely come to the conclusion that states choosing Medicaid expansion and states choosing to establish their own exchanges with premium subsidies were both actually intentional and central parts of the legislation.
We're talking about the Solicitor General of Indiana who filed an amicus brief in support of the petitioners [1] -- these are states whose representatives decided they did not want the subsidies, now having those subsidies forced upon them by an outright red-lining of the law of the land under a novel "broader context theory". Personally, that's terrifying to me. The amicus brief is quite well written and summarizes the counter-argument quite well if you're interested in actually hearing a reasonable argument of both sides (rather than the typical political commentary, which is irrelevant to the actual case at hand)
Next perhaps we'll be talking about the "broader context" of the CFAA when the Feds want to expand the scope of hacking charges, or perhaps the "broader context" of mandatory sentencing minimums. I'm sure there's a "broader context" to go along with just about any ideological ax that may presently need grinding, regardless of the ideological slant of the ax grinder.
[1] - http://www.americanbar.org/content/dam/aba/publications/supr...
In his blog, Fisher says he was relieved the court didn't use the Chevron approach, but it seems like that would be preferable to red-lining the law as you say. Do you know why he said that?
EDIT: Nope, nevermind, Fisher didn't say that. Don't know where I read it.
'Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake." As evidence that it was not indicative of his beliefs, he noted that his projections of the law's impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.'
The more I read it, the more it appears that this is an example of the Democrats having it both ways. The backpedaling sounds like a way of avoiding saying as much.