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Would We Be Better Off Losing on Obamacare at the Supreme Court? A Response to John Yoo
A few days ago, Ricochet’s John Yoo predicted that Supreme Court will decide that the PPACA (Obamacare) does not allow for the federal exchanges to pay out subsidies in the upcoming King v Burwell case. Although I am a legal ignoramus, I have been following the excellent symposium on this case over at SCOTUSblog, and I wonder whether we might see an unexpected result here.
Based on the evidence from both sides, two points become clear. There is indeed no explicit passage in the law that mandates the federal subsidies, as exists for state exchanges. Still, there are a number of passages which make no sense if the federal exchanges are forbidden from paying out subsidies. More to the point, the law is so inconsistent and muddled that a good-faith argument could be made that it is simply ambiguous and incoherent on this issue; if so, the IRS will have the authority to come up with its own interpretation (the so-called Chevron deference).
Prof. Yoo suggests that Chief Justice Roberts may be eager to atone for his prior sins in the NFIB v Sibelius case, especially after the last election in favor of Republicans. Yet I find it strange to imagine that a man who only two years ago twisted himself into pretzel-like contortions to save the law will reverse himself and let the law twist in the wind. Instead, I wonder if he has something more nefarious up his sleeve.
There are essentially three ways the Court could decide: a) The law does not allow federal exchanges to pay out subsidies; b) The law does allow the subsidies; or c) The law is ambiguous on this matter.
This is where my scenario becomes somewhat unorthodox. It all comes back to the Chevron deference. If the Supreme Court were to rule that the law is genuinely ambiguous, the IRS would decide the issue, and we know how the current IRS will decide. But in two years, there will be a new election, and a new president who can choose a new head of the IRS. In other words, by deciding that the law is ambiguous, Roberts could hand the keys to the next president to legally hollow out Obamacare single-handedly.
On Ricochet, we often lament Obama’s use of executive authority to counteract or ignore laws that are perfectly clear. But if the Supreme Court itself determines the law to be unclear, the president (whomever he is) would be obligated to act alone. Considering how difficult the filibuster makes full repeal of the law — even with a Republican president and majorities in both houses of Congress — having the Supreme Court’s seal of approval to single-handedly change the implementation of the law would be a political godsend.
It’s also worth considering the issue from the Court’s perspective. Roberts obviously prefers legislative fixes to judicial ones, and wants to preserve the public’s faith in the Court and the judiciary. Yet, if the Supreme Court rules completely against the government in King v Burwell — option a from above — the ruling will become the left’s Roe v Wade for the next generation: their textbook example of judicial overreach.
I imagine everyone on Ricochet would be perfectly content if the Supreme Court gave Obamacare a coup de grace, regardless of the political fallout. But from the standpoint of good governance, this should be determined by elected officials chosen directly by the people.
Giving the president explicit authority to decide on these subsidies would likely turn the next presidential election into a referendum on Obamacare. If the bill is truly as unpopular as polls suggest, a Republican candidate running on a platform of eliminating federal subsidies (which would almost inevitably lead to the unravelling of the entire law) should be a shoo-in. And given the difficulty for Republicans to win 60 Senate seats, it would provide voters an unprecedented and historic opportunity to roll back an entitlement program at the ballot box.
A reasonable predication or too clever by half?
Image Credit: “Official roberts CJ” by Steve Petteway – http://www.supremecourthistory.org/history-of-the-court/the-current-court/chief-justice-john-roberts-jr/. Licensed under Public domain via Wikimedia Commons.
Published in General
Totally highlighting the problem. Flexible Spending Accounts do not roll over while HSA’s do. The problem is that not everyone can get an HSA. In my case, I get Tricare Standard as a benefit of my 20 years of active service. To get an HSA would require buying into another insurance plan. Since I am a fed now, I can get a FSA – but it doesn’t roll over.
This is too complicated by half.
I think he valued the self-imposed standard of the court to “find” a way to interpret the law in a way that passed constitutional muster. In light of the ‘stupid American voter’ comments this past week, he was one American who recognized Obamacare as a tax. One of my many problems with the Robert’s court now it that it is apparent that the Federal Government’s power to tax has no limits.
This law is bad no matter how one slices it whether it be Constitutionally, politically, or culturally. Any attempt to game this for political gain runs the risk of it never going away and thus pushing this country beyond the point of no return regarding us becoming a Western European socialist country. The GOP doesn’t have the guts to repeal this and are looking to the courts to do their dirty work–McCain/Feingold anyone?–and the courts are led by a hapless coward who was too worried about what the DC social circuit would say about him as opposed to doing his job by asserting his branches Constitutional role in 2012. I hope they do the right thing and gut this otherwise Obamacare will be with us for the rest of time.