UPDATE: The decision is analyzed at Powerline today with quotes from the decision.
The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167.
Therefore, Roberts rewrote it. Nice !
Today, the Supreme Court upheld the Obamacare state exchange subsidies.
The Supreme Court has justified the contempt held for the American people by Jonathan Gruber. He was widely quoted as saying that the “stupidity of the American people “ was a feature of the Obamacare debate. This does not bother the left one whit.
Like my counterparts, I have relied heavily on Gruber’s expertise over the years and have come to know him very well. He’s served as an explainer of basic economic concepts, he’s delivered data at my request, and he’s even published articles here at the New Republic. My feelings about Gruber, in other words, are not that of a distant observer. They are, for better or worse, the views of somebody who holds him and his work in high esteem.
The New Republic is fine with him and his concepts.
It’s possible that Gruber offered informal advice along the way, particularly when it came to positions he held strongly—like his well-known and sometimes controversial preference for a strong individual mandate. Paul Starr, the Princeton sociologist and highly regarded policy expert, once called the mandate Gruber’s “baby.” He didn’t mean it charitably.
Starr is a leftist who has studied American health care since he wrote his important book, “The Social Transformation of American Medicine.” I used it in my research for my own book, “A Brief History of Disease, Science and Medicine.” I used it in writing the Economics of Medicine chapter.
Now the Supreme Court has upheld the state subsidies in spite of the clear language of the bill that became law. This decision will quickly be compared to the Court’s decision on the “penalty” case, in which the Court rewrote the law to make the “penalty” a tax.
Twenty six states sued over the law, arguing that the individual mandate, which requires people to buy health insurance or face a fine starting in 2014, was unconstitutional. Opponents cast the individual mandate as the government forcing Americans to enter a market and buy a product against their will, while the government countered that the law was actually only regulating a market that everyone is already in, since almost everyone will seek health care at some point in his or her life.
The Court decision was that the penalty was really a tax, which Congress can impose. It has again has rewritten the law, or rather Chief Justice Roberts rewrote the law. His intervention was not popular with colleagues.
“Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that “Exchange established by the State” means “Exchange established by the State or the Federal Government”? Little short of an express statutory definition could justify adopting this singular reading. Yet the only pertinent definition here provides that “State” means “each of the 50 States and the District of Columbia.” 42 U. S. C. §18024(d). Because the Secretary is neither one of the 50 States nor the District of Columbia, that definition positively contradicts the eccentric theory that an Exchange established by the Secretary has been established by the State.
I agree but the Supreme Court follows the election results, as Mr Dooley once reported.
And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
I agree, although the decision may solve a few problems for Republicans. First, it is apparent that the Roberts appointment resembles previous Republican Court appointments in which supposedly conservative appointees “grew” in office to adopt the policies of the left. The next Republican president needs better vetting of potential nominees.
Second, I do not believe Obamacare makes economic sense. I believe it will fail of its own weight and perhaps this decision will make that more obvious. The Obama Administration has recoiled from enforcing the Employer Mandate. What will it do now ? Hillary Clinton, the Democrat favorite for nomination, is the author of the previous iteration of this leftist takeover of health care. This decision may focus attention on her record.
There is a nice analysis at Wall Street Journal today on subsidies.
Steve Rattner, a Wall Street figure and President Obama’s former auto-bailout czar, insists in a recent New York Times op-ed that ObamaCare “is working,” by which he apparently means it’s in operation, which nobody denies. Mr. Rattner, like a lot of analysts, writes as if costs are benefits—as if millions of people lining up for something from the wallets of their fellow citizens, ipso facto, is proof of a worthwhile program.
Well, of course !
The column was written before today’s Supreme Court decision but has a few interesting points to make.
King is a threat to ObamaCare because, without subsidies, ObamaCare is nothing. It fixes no problem in our health-care system, except to subsidize more people to consume health care at taxpayer expense. Not that subsidies are always undesirable: They help some people get necessary care. But subsidies do the most good when used sparingly, because subsidies also tend to inflate prices for everyone as well as encourage inefficient consumption that doesn’t improve health and may even endanger health.
Subsidies must be countered with rationing. Rationing by price has existed for millennia but is considered immoral by the left.
Never going to happen? It will, if the GOP summons the courage to fix ObamaCare along the lines of the original, rational, “reform” that has motivated health-care thinking for four decades. A place to start would be reducing ObamaCare’s costly coverage mandates so policies would be genuinely attractive to people spending their own money; subsidies could then be trimmed back because fewer people would need subsidies to induce them to buy coverage.
That must await a new president who might sign real reform.