King v. Burwell is *not* a major constitutional challenge to Obamacare.

Background here (via here): the short version is that the Supreme Court has decided to hear arguments on King v. Burwell (which is effectively the same as Halbig v. Burwell).  For those who don’t remember, the underlying issue is whether Obamacare actually gives the President the ability to provide subsidies to people who use state-sponsored Obamacare exchanges AND the federally-provided one, or whether the law only permits subsidies for users of the state exchanges.  The administration’s defenders, apologists, and sycophants have been arguing that it’s all due to a typo or a technicality… and in the face of some compelling counter-arguments (and not a few amused head-shakes), including some inadvertent counter-arguments from those who helped create the legislation in the first place.


Anyway, regarding the actual scope of the case; this is a very important point that was made by Philip Klein.  Assuming the court found for plaintiffs:

…Instead, [the Supreme Court would] merely be ruling that the administration wasn’t following Obamacare as written.


The case now before the court is not making a constitutional claim that Congress doesn’t have the power to pass federal exchange subsidies, but merely that the statute they wrote did not authorize such subsidies

…And the remedy for that claim is very simple. If it truly was the intent of Congress to give the administration the power to provide Obamacare subsidies even in states that did not set up a healthcare exchange, then the Court can simply send the matter back to Congress and have them add whatever authorizations Congress desires to the law. There! Problem solved.

OK, now the major objections.

  • Congress won’t give the Obama administration those authorizations! …Well, no, they won’t.  What’s your point?  Think of this as a salutary object lesson in the joys of doing a proper job the first time.  Still think reconciliation is a great way to shove bad law down all our throats?  No?  Imagine my shock.
  • Why would the Supreme Court do this? Well, why wouldn’t they?  This is pretty much how things went down with the VRA preclearance case; the courts got tired of waiting for Congress to update what was a steadily more-and-more broken law, so they crossed out the most decayed bits and told the legislature to fix its own mess.  That the legislature decided that it could fix said mess by letting said bits finish decaying is not really the Court’s problem.
  • John Roberts will betray us again! Forgive me for saying this, but this is an emotional argument, not a logical one. The issue of the individual mandate, as a lot of people keep trying to point out, was a constitutional issue; this is a procedural issue.  The Court these days labors under the toxic cloud that is the Roe v. Wade decision; even the very liberal Ruth Bader Ginsburg has a real problem with the precedent that it set. Rightly or wrongly, the Court tries not to mess with original intent if it can possibly help it, which is a major reason why Roberts felt obligated to come up with a way to let Congress keep the individual mandate that did not involve the Commerce Clause.  Happily, that is not necessary here: broken law?  Send it back to the legislative branch.  There! Problem solved.

Look, I realize that folks still want to argue that last bullet point – particularly since I used the term ’emotional argument,’ which I know people will hate.  However, the nice thing about this discussion – as Dan McLaughlin notes here – is that by next June at the latest we’ll have it settled, once and for all. Guess we’ll see, huh?

Moe Lane (crosspost)


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