Toward the end of Wednesday's oral arguments in the latest Obamacare case to make it to the Supreme Court, Donald Verrilli, U.S. Solicitor General, argued that the administration's interpretation of the healthcare law was the most deferential to states. The argument, apart from coming from an administration that has consistently asserted a robust role for the federal government, was a bid to win over Justice Anthony Kennedy, a key swing vote, who raised concerns about the federalism implications of the suit.
At issue in the case, King v. Burwell, are the subsidies that the federal government provides for individuals buying insurance through Obamacare. The text of the Affordable Care Act says subsidies are to go to people obtaining insurance through an "exchange established by the state," but an IRS rule subsequently said subsidies would also apply to exchanges set up by the federal government on behalf of states. Those challenging the law argue that the IRS acted illegally, and that Congress intentionally excluded exchanges set up by the feds so as to induce states to do it themselves; if they didn't, their residents wouldn't get subsidies.
Verrilli argued that the law's text "is designed to afford state flexibility" and that the challengers' interpretation would contradict this. He added, "It would be an Orwellian sense of the word 'flexibility' to use it in the manner that petitioners say the statute uses it, because it's the polar opposite of flexibility." The implication was that this would be preposterous.
In truth, Orwellian semantics are a standard aspect of Obamacare, a law that's named the "Patient Protection and Affordable Care Act" even though in reality it has triggered the cancellation of individual health insurance plans, narrowed choices of doctors and hospitals, and jacked up the sticker price of insurance.
If you want to get a sense of how Orwellian the law actually is, just look at the section cited by Verrilli — 1321. It promises "state flexibility," as he noted, but starts by instructing the secretary of Health and Human Services (a federal official) to "issue regulations setting the standards for meeting the requirements" for states creating exchanges, offering health insurance through the exchanges and managing risk in the insurance market. It also says the federal government can impose "such other requirements as the Secretary determines appropriate." So any state that sets up an exchange must abide by a mountain of federal regulations and that it can only offer insurance policies that meet the federal definition.
Any state that acts under this section to create an exchange, must do so "at such time and in such manner as the Secretary may prescribe." States, the law specifies, must meet federal standards and pass a state law "that the Secretary determines implements" those standards. Is that what passes for "flexibility" these days?
This is just a small taste of the Orwellian language used in Obamacare, particularly when it comes to the role of states. Another section advertises a "Waiver for State Innovation," which in plain English, one might think would be a way for states to avoid the mandates of Obamacare, and instead develop creative healthcare policies that best serve the unique needs of their populations. For instance, some states might prefer to focus on reducing costs by encouraging the adoption of cheaper catastrophic plans attached to health savings accounts — providing individuals more control over their healthcare dollars while still protecting them against financial ruin in case of major medical setbacks. But that sort of innovation isn't possible under Obamacare. The "waiver" option doesn't even kick in until 2017 and it comes with many strings attached. All insurance offered in the states must be "at least as comprehensive as the coverage" defined by Obamacare. That coverage must be offered on an exchange, and states must prove their proposals would cover as many people as Obamacare.
Given this history of twisting language, it comes as no surprise that the administration spent Wednesday arguing that when the authors of Obamacare made subsidies available to an "exchange established by the state" they really meant, "established by the state or the federal government."