Pleading Insanity over Obamacare

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Recently a Texas jury found Eddie Ray Routh guilty of murdering Chris Kyle, the US Navy SEAL featured in the movie “American Sniper.” The jury did not accept Routh’s plea of not guilty by reason of insanity.

Apparently, criminal defendants aren’t the only ones pleading insanity these days. Opponents of the Affordable Care Act, who certainly purported to be of sound mind when the Act was debated and passed, have now decided that neither they nor anyone else had a handle on the reality of the legislation. What they and everyone else at the time understood the bill to say was that anyone who signed up for insurance could apply for a federal subsidy, whether they did so through an exchange set up by the state or an exchange set up for the state by the federal government. I followed discussions of the law pretty closely, and I never heard anyone suggest that the millions of Americans who would enroll–and did enroll–through the federal website would be ineligible for subsidies.

Having failed to stop the law from being passed or to get it repealed, opponents have now focused on several places where the legislation refers to the subsidies being obtained through “exchanges established by the state.” That means, they say, that only people who enrolled in the sixteen states where the states created their own exchanges can obtain subsidized insurance.

No one paid much attention to that wording at the time because everyone agreed that the whole point of the law was to make insurance more affordable for people in all states. That’s exactly why the federal government would create an exchange for states that didn’t create their own. Without that, the law makes no sense. It mandates insurance for most Americans, while helping only those in certain states to afford it. It makes insurance companies in every state provide higher levels of coverage (such as coverage for preexisting conditions), but deprives the insurance industry in many states of the expanded customer base that it would need to finance the improvements.

These would have been powerful arguments against the law, if the opponents had only thought to use them. The reason they didn’t is that they understood the law the same way everyone else did at the time, as a rational–although controversial–plan to make health care affordable for all. Now they rest their case on the novel argument that the law was actually crazy, with an unworkable mix of national mandates and state-limited subsidies. But doesn’t that imply that even those who were against it must have been a little crazy for taking it seriously in the first place?

In King v. Burwell, the case argued yesterday before the Supreme Court, the plaintiffs are asking the justices to declare the Affordable Care Act self-contradictory and self-negating. They would focus on the troublesome wording instead of the entire bill, ignoring the longstanding legal principle that the law must be judged by its overall intent. If the justices can radically change what the law is about, perhaps they should also retitle it the “Unaffordable Care Act,” since they will be taking subsidies away from most of the people who qualified for them. (Another good title might be the “We-Should-Have-Read-This Act.”)

What will happen if this rather outlandish argument actually prevails in the Court? Congress could just correct the misleading language, but Republicans will refuse to do so. They will hold out either for repeal or for changes unacceptable to the President, such as removing the mandate that people obtain insurance. (Without the mandate, it probably doesn’t pay for the insurance companies to participate in this market and accept the higher standards of coverage.) Some states might now set up an exchange to keep their citizens eligible for subsidies. But others will no doubt hold out, leaving millions without coverage.

If the Court had found the Affordable Care Act unconstitutional in National Federation of Independent Business et al v. Sebelius, on the grounds that the federal government lacked authority to subsidize private health insurance, then people would have to live with that. But now the Court is being asked to do something very different and more bizarre: decide that a law that was already ruled constitutional doesn’t actually authorize the constitutionally permissible action it was created to accomplish, at least not in most states. It’s funny that the brilliant justices now arguing for that interpretation didn’t notice that when they reviewed the law the first time.

Oh well, if they need a defense, there’s always the insanity plea.

Postscript: On June 25, 2015, sanity prevailed, as the Supreme Court ruled 6-3 that enrollees in all states are eligible for subsidies under the Affordable Care Act.

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