Diary

King vs. Burwell- Part 3: Possible Outcomes and Solutions

Given the evidence offered in the first two parts of this series, it is easy to see what a debacle of a law  is Obamacare.  Yet, it was one of the most debated pieces of legislation in recent history.  The fact that Congress- essentially a collection of lawyers- would draft such a law is discouraging at least and criminal at worst.  If they deliberately left the law ambiguous in this area- and the evidence suggests otherwise- then shame on them.  If it was unintentional, they should be disbarred as lawyers.

Furthermore, ambiguously worded laws and granting deference to administrative agencies may provide political cover to certain members of Congress, but they are ceding legislative powers to a growing cadre of administrative, unelected officials.  In effect, Congress itself is allowing the Executive branch to run amok by ceding power to administrative agencies.  We are increasingly becoming a populace governed not by elected officials, but by faceless administrative “experts-” rule by the academically elite.

When the ACA was originally upheld, it was achieved under Congress’ taxing authority, not under the Commerce Clause.  The decision stated so upfront.  At the time, many here and elsewhere on the Right vilified John Roberts for that decision.  However, that line of thinking has opened up a line of attack on the law that did not exist previously.  While most of us were looking at the Commerce Clause, who would have thought the Taxing Clause would be the law’s ultimate undoing?

So why did the Supreme Court take this case?  Other cases were working their way through lower courts.  If the Supreme Court waited, the case would not be available for review until at least October 2015.  This case forced the Supreme Court’s hand since it created a circuit split.  More importantly, there are obviously four Supreme Court Justices who believe the case has substantial merit as a statutory interpretation case that may ultimately rely on the Administrative Procedures Act.  There are obviously four Justices who believe just that.

What if the Court sides with the government here?  The first effect is practical- everything proceeds as normal.  No one loses their subsidies and states that do not have State-established exchanges now have their residents and employers subject to the federal mandates.  The Court would be saying there was no reason for the carrot and stick approach in the first place with respect to states establishing their own exchanges since the federal government could and would eventually just step in there.  In other words, if the government could have legally and constitutionally done what they are doing now, why the need for so many words or even the option of state-established exchanges?  It makes no intuitive sense.  Unfortunately, though, it would greatly expand the powers of the federal government at the expense of the powers of states.  It would also allow the IRS to become a de facto quasi-legislature which is a chilling thought.

Some claim that if the Court agrees with King, it would deny health care coverage subsidies to over 4 million people.  But those on the Left who make these claims are losing sight of one fact.  If the Supreme Court vacates the IRS rule, it is not the Supreme Court but the ACA itself that is denying the subsidies. The law specifically denies subsidies in other instances.  Are these examples of a “denial of health care coverage” also?  Furthermore, recent news shows that the IRS is already requiring thousands of people receiving subsidies to repay all or some of the subsidies they have already received.  Vacating the rule only affects how often and to what extent that happens.  The IRS is backtracking whether there is a Court decision or not.

Others are claiming massive disruption in the health care markets.  Probably the biggest disruption was the passage of Obamacare in the first place.  That is like the bull owner whose bull got loose in the china shop blaming the shop owner for having such delicate merchandise.  Instead of looking at a ruling here causing massive disruptions in the insurance market (it would not be the great health care apocalypse predicted), it is more correctly analyzed as putting an end to the IRS’ decision to expand the subsidies and spending provisions outside the legislative process.  It would be reigning in the IRS.

Further, how much disruption that may occur will be dictated by how Congress responds.  They could simply pass a law by amending the ACA and codifying the IRS rule.  Congress routinely reacts to Supreme Court rulings in this manner.  However, can anyone reasonably see that happening?  To do so would be to reopen the entire debate that Obama himself has said is over.  It is also doubtful that a block of 4 million people who lost their subsidies would become a strong political voice for action although the Democrats would likely find the hard-luck stories and use them before congressional hearings.  Others would simply drop health insurance altogether because they could not afford it of their own accord, or more people would lose employer-based coverage.  In all these cases, the disruption’s fingers point back at Obamacare itself.

With the carrot removed, so goes the stick also.  Hence, funding for subsidy recipients in the 14 states with State-established exchanges is reduced since the tax penalties on individuals and employers would go away.  With decreased revenue, but increasing cost of subsidies, the federal budget is strained in other areas while placing no downward pressure on health care costs.  The result is a greater proportion of the population without health insurance after the implementation of Obamacare than before its enactment.  In the end, a shoddily-worded law has wreaked more havoc in health care than if Congress did nothing.