On Monday, Nicholas Bagley over at The Incidental Economist wrote, Fifty Shades of Wrong. He’s a little different from most of the people over there in that he isn’t a doctor; he’s a lawyer who specializes in issues related to health. So it’s a good idea to keep up with him, especially these days of the never ending flood of anti-Obamacare lawsuits. Of course, you always have to be careful in listening to what legal scholars say about the law in regard to Obamacare because they can only speak to the law and its traditions. They can’t speak as well to the ideological madness that lives inside the conservatives on the Supreme Court.
This article is in reference to a recent academic article in the University of Miami Business Law Review, Anomalies in the Affordable Care Act that Arise from Reading the Phrase “Exchange Established by the State” Out of Context (pdf). It was written by Timothy Stoltzfus Jost of Washington and Lee University and James Engstrand, a practicing attorney. And it takes on the case in King v Burwell in a very interesting way.
The base of the case is that there is one sentence in the healthcare law that seems to imply that subsidies are only available to state run exchanges — not federally run exchanges. To many people, this seems to be a smoking gun — even to many liberals. But it has been noted that there are other parts of the law that imply just as strongly that the subsidies are to be provided to purchasers regardless of what kind of exchange they use. To me, that’s a very compelling counterargument. The truth of the matter is that in any sufficiently complicated document, there will be inconsistencies and contradictions. (See, for example, Sancho’s disappearing donkey in Don Quixote.) The fact that the plaintiffs have found one — and only one — example of a contradiction does not mean that the proper reading of the law is that one sentence.
Unfortunately, I find myself unable to read the article itself. This is strange, because I’m pretty good at reading scientific papers in fields far outside my own. But the lawyers have their own thing going on. I get the gist of it. But it is too fine-grained for me. So I’ll have to depend upon Bagley’s summary. Basically, what the authors are arguing is that if the Supreme Court finds for the plaintiffs, it will be introducing “at least fifty” anomalies into the law. (Hence the title of Bagley’s article.) In other words, in the name of fixing on inconsistency, the court will be creating far more new ones.
I agree with Bagley’s conclusion:
That last sentence is the killer though. I really want to believe that after all the information that has come out since the Supreme Court took the case, that King v Burwell will go down in flames, nine to zero. It’s my hope that at this point, the conservatives are thinking that they kind of embarrassed themselves in even taking the case. But at the appellate court level, conservative judges have seemed quite willing to find on behalf of the plaintiffs for no other reason than that they just don’t like Obamacare. If there is anything that the last 15 years should have taught us, it is that the judicial system in this country is every bit as political as the United States Congress.
But this information does give me confidence. And I am hopeful that Obamacare will squeak out a 5-4 decision. And if it does, it will be fascinating to see how the conservative justices tie themselves in legal knots — go against almost everything they’ve ever said in the past — to justify why it doesn’t matter what the total law says — only what one sentence says that happens to lead to the conclusion they want.
