Liberals Very Concerned As Those “Four Words” Go To The Supreme Court

And they are trotting out lots of scary stories

(NY Times) The first lawsuits challenging the Affordable Care Act were still in the early stages, but conservative lawyers were already working on a backup plan in December 2010 if the first line of attack failed.

It was Thomas M. Christina, an employment benefits lawyer from Greenville, S.C., who found a new vulnerability in the sprawling law. “I noticed something peculiar about the tax credit,” he told a gathering of strategists at the American Enterprise Institute.

With a rudimentary PowerPoint presentation, Mr. Christina sketched a new line of argument. He pointed to four previously unnoticed words in the health care law, enacted nine months earlier. They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been “established by the state.”

The Supreme Court will hear arguments on the implications of Mr. Christina’s theory on Wednesday. If a majority of the justices accepts it, more than six million Americans could lose health care coverage and insurance markets could collapse in about three dozen states where the federal government runs the exchanges, imperiling the health care law itself.

Except, none of them will actually lose their health insurance; all they will lose is their taxpayer funded subsidy.

The timing of his discovery figures in the case, which will turn on the meaning of the phrase he identified in 2010. The justices must decide whether Congress intended it to forbid the government to provide subsidies in states without their own exchanges.

Supporters of the law note that Mr. Christina did not discover the phrase until well after the law’s enactment, suggesting that Congress had been unaware of the possibility that people in states that opted not to run their own exchanges would be ineligible for tax subsidies.

Well, it’s a Very Big Bill, at over 2000 pages. However, we know, especially per Jonathan Gruber, that those “four words” were intended to incent States to create their own health exchanges or see their residents not receive subsidies.

Liberals are also very upset over the “plain meaning

There are over 400,000 words in the Affordable Care Act. The challengers in King v. Burwell rely upon a single one of those words—a simple preposition (“by”) buried in a provision (26 U.S.C. § 36B) setting forth the formula for monthly tax credits for individuals—as the basis for an interpretation of the Act that would unravel Congress’s efforts to guarantee affordable health care for all Americans.

According to the challengers, Congress’s use of the word “by” in the phrase “an Exchange established the State” (rather than, for example, referring to an Exchange established “within” or “for” the State) has a world-changing impact: On their reading, when a State chooses to allow the federal government to set up a health-insurance Exchange for its residents—an option the Act plainly allows, and one that almost three dozen states have adopted—that choice would have catastrophic consequences, namely, the denial of tax credits for all of the State’s residents who wish to purchase insurance on that Exchange . . . which would in turn lead to the virtual destruction of the insurance market in that State, thereby making the State’s residents much worse off than if Congress had not enacted the ACA at all. See, e.g., NFIB v. Sebelius, 132 S. Ct. at 2674 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (“[The Act’s] system of incentives collapses if the federal subsidies are invalidated.… With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”).

For good reason, the challengers make little effort to demonstrate that any members of Congress, let alone majorities of both houses and the President, actually intended to put the States to such a terrible choice, with such ruinous consequences if a State chooses one of the options Congress has offered.

Perhaps the members of Congress should have read the bill prior to voting to pass it. Perhaps they shouldn’t have passed a bill with 400,000 words. For comparison, one of the most well know very long books, War And Peace, is around 560,000 words (English edition). Also in comparison, if you mess up 4 words in software code you can mess up a big part of the program. Remember, a tiny coding error brought on the Y2K freakout. Finally, one cannot complain that Congress meant to give subsidies to people who sign up via a federally run exchange when they hadn’t read the bill.

Then we have Nicholas Bagley opining at the NY Times

Just 16 states have established such exchanges. If the court rules in favor of the plaintiffs, an estimated 9.6 million people who bought insurance through will lose their coverage.

Again, no, just their subsidies.

Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.

But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.

Perhaps Democrats who voted for this horrific law should have thought of this, which would have required reading the bill, beforehand. If Ocare supporters lose at the Supreme Court over this, they have no one to blame but themselves.

As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.

You can bet that the plaintiffs will play the words of Jonathan Gruber, a key architect of Ocare, who stated multiple times that the intention was to deny subsidies to states with federally run exchanges.

Crossed at Pirate’s Cove. Follow me on Twitter @WilliamTeach.

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