The Monster Lives! The Exquisite Politics of King v. Burwell
Everybody won.
I know, that’s a statement that, almost by definition, calls
upon people who know me to question my sanity, but the Supreme Court has ruled,
ACA has survived, and everyone has won.
Let’s take the most obvious winner. Mr. Obama won big. This is his healthcare plan, his two terms
will largely be defined by it, it has single-handedly destroyed the Democratic
majorities in the House and the Senate, it is deeply flawed, one can question
his political judgment in pushing for it, and certainly his managerial
competence in overseeing its execution, but there it is. Obamacare is up and running, it has,
regardless of whatever people say,
helped millions of people to gain coverage they otherwise couldn’t have,
and, because of the multi-faceted way it interacts with patient needs, will
help many millions more at different stages of their lives. I am not going to say it is a positive good
for everyone, or that I like it personally, but putting aside the apocalyptic
end-of-civilization-as-we-know-it claptrap, it will be judged more kindly by
history than its critics would acknowledge.
Republicans won as well:
There’s been a lot of talk about how good it will be for them to be able
to run and raise money off of the continuing “offense against humanity” that
ACA is, but I think that’s a lesser point. The truth is they were frightened. They dreaded the fallout, and the ads that
would have run in 2016. Should the Supreme Court have killed off the
exchanges, millions of people would have lost coverage—and many of those
millions happen to live in states that are run by Republicans. There were frantic behind-the-scenes
discussions about how to bridge the gap long enough to get through the next
election season, hoping to distract voters until they could repeal the entire
thing in 2017. But the legitimacy they
thought they would gain by having a supportive conservative Supreme Court
majority was probably ethereal. The centrists
and the unaligned public (and there is such a thing) clearly understood this
was a political dispute being litigated in the courts. Polling showed that the public did not like
the ACA, but, by a very wide margin, did not want to see the Supreme Court
effectively repeal it.
The GOP had another problem as well—one that is not fully
understood by many Democrats and liberals. Not all conservatives are
hard-hearted SOB’s who would personally pull the plug on a child with cancer
and then rejoice as the family sobs. It
isn’t just the political fallout that worries many serious Republican
lawmakers. It is the actual impact of
repeal. This is both a practical concern
(some GOP governors, including John Kasich of Ohio, have actually embraced
certain aspects of ACA, albeit while decrying the entire law) and an
intra-party one. The fact is that there
is no “replace” after “repeal” because the GOP cannot coalesce around a set of
principles. Many conservatives are
philosophically opposed to any meaningful role of the government in healthcare,
and saw King v. Burwell as a starting
point toward dismantling the entire entitlement system—including not just
Medicaid and SNAP, but also Social Security and Medicare. A “replace” for that wing of the party would
simply be a cap on malpractice awards, a reduction in the role for the FDA, and
immunity for the medical device industry.
If you happen to be running a state (or representing one) and aren’t either
running for President, or pine to be the next Sam Brownback, the thrilling theory of
purity clashes with the reality of constituents dying for lack of access to a
doctor. The GOP must reconcile that, and the smart
people there know it. They need a plan,
and this buys them time to come up with one.
Last, but not certainly least, the Supreme Court is probably
a winner. I have read a great deal of
commentary about this from across the spectrum, but I suspect that the Chief
Justice’s opinion, or, more importantly, his reason for deciding this way, has,
at its core, a very important motive. He
doesn’t want to encourage chaos. Ignoring
legislative intent, which has long been a legitimate part of judicial analysis,
will create a seismic shift in the way jurisprudence is conducted going
forward. Roberts allows that the express language of the ACA contains several
examples of poor drafting (and I think it’s amply clear, if he had been in
Congress, he would never have voted for it.)
But, he says, despite all that “Anyway, we “must do our best, bearing in
mind the fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their place in the
overall statutory scheme.”
Why? We know he doesn't like the law, and we know he was
excoriated for his previous vote. I am
just speculating as to what was in Robert’s mind, but I have to think he at
least considered the possibility that by discarding evidence of the intent of
Congress in this case, he would open the floodgates of further litigation, not
just on ACA, but on many statutes that had been on the books for decades. Don’t like a law because of a policy
dispute—hire someone to pour over every last word and clause and find
something, anything, that you can take before a like-minded Federal Judge, and
then you are off to the races. I would
also note that Justice Kennedy, who voted against the Individual Mandate in
2012, joined Roberts this time, and did so without filing a concurring
opinion. It seems that he, too, also
agreed with the legislative intent analysis.
So, here we are. This
isn’t over, by any stretch of the imagination.
GOP governors are still going to resist, the House and Senate are still
going to try to repeal, and I expect there will be yet another threat of a
government shutdown. And, if you can believe it, there is yet another ACA lawsuit,
claiming the statute wasn’t properly enacted.
No lions hanging out with the lambs.
And yet, I find myself oddly optimistic. ACA itself could also be
a long-term winner. It is a badly
drafted law—as Justice Roberts noted quite forcefully. It was largely written behind closed
doors—like a lot of laws that get far less scrutiny. It is clumsy, has internal contradictions,
and needed some serious proofreading. It
desperately needs technical corrections. Republicans ought to get on board with
this, sooner rather than later, and use the opportunity to introduce some of
their own ideas, and show they know how to govern. They won’t, at least not right now, because
they need to vent some.
So, I’m going to go out on a limb, and say that the two
sides will, sooner or later, have to reconcile, and better legislation is
possible. I get this optimism from a
strange direction—a story in the June 24, 2015 edition of The Hill. It turns out that there is an Obama appointee
that Republicans genuinely admire, a person who “could give lessons to the
President on how to work with Congress” (Tom Cole (R-OK), head of the House
Budget Committee).
That would be Secretary of Health and Human Services Sylvia
Matthews Burwell.
The President seems to have picked a winner.
June 28th, 2015
Michael Liss (Moderate Moderator)
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