The Supreme Court won’t hear arguments in King v. Burwell, a lawsuit challenging the legality of subsidies in the federal Obamacare exchange, until early March, but The Scrapbook is already eagerly anticipating the suit for no other reason than that it is shaping up as a case study in the lawyerly contortions required to defend the indefensible.
To quickly summarize the case: The text of the Obamacare legislation clearly and repeatedly says that subsidies are limited to insurance exchanges “established by the State.” Unfortunately, only 14 states and the District of Columbia actually set up their own exchanges—the rest of the states either declined to create their own exchanges or tried to set them up and failed because of technical difficulties and fraud. Insurance through the Obamacare exchanges has already dramatically failed in its mission to be affordable. And if the government can’t offset the already-expensive coverage with subsidies in 36 states, there will be drastic consequences for the embattled law.
Supporters of the law initially insisted that, of course, the law was intended to provide subsidies to users of a federal exchange. They laughed off those who had bothered to read the fine print. Then Jonathan Gruber, an MIT professor and one of the architects of Obamacare, was caught on tape saying that the law wasn’t supposed to provide subsidies to federal exchanges—the better to motivate the states to do what the administration wanted. (Notably, Gruber was also taped saying that he and President Obama conspired to lie about the law’s middle-class tax increases, but for some reason the media haven’t shown much interest in that story.) The law’s boosters continued to scoff even as they distanced themselves from Gruber. Then the Supreme Court took up the case and panic started to set in. Supporters of the law have been left grasping for arguments.
To give you an idea of where things stand, former federal prosecutor Jonathan Keim (at National Review’s Bench Memos blog) flags this bit from one of the solicitor general’s briefs in King v. Burwell: “As the use of that phrase [‘established by the State’] in Section 36B and throughout the Act demonstrates, it serves to identify the Exchange in a particular State. Its presence or absence in the Act’s provisions reflects style and grammar—not a substantive limitation on the type of Exchange at issue.”
In effect, the government is saying that a string of words with clear meaning is the equivalent of an extraneous comma. Not that this is a persuasive argument; very consequential court cases often come down to grammar. The phrase “established by the State” is also used repeatedly, so if it’s a matter of style, whoever wrote the law must have had a very peculiar form of Tourette’s.
This argument is nearly as entertaining as the time during the oral arguments in the Citizens United case that Obama’s deputy solicitor general Malcolm Stewart told the justices that campaign finance reform means the government may have to ban books. This prompted a horrified reaction even from the liberal justices. As it happens, the solicitor general overseeing that case was Elena Kagan, now seated on the Court and ready to hear the new solicitor general argue with a straight face that if you gave 1,000 monkeys 1,000 MacBooks, eventually they would end up typing “established by the State” over and over again. We offer no predictions on the ultimate outcome of King v. Burwell, but we suspect the upcoming oral arguments will be filled with inadvertent comedy.
