I was not a fan of the argument that the individual mandate at the heart of Obamacare somehow was beyond the power of Congress to impose. But it at least was interesting and thought-provoking, even if ultimately unpersuasive. That it was partially accepted by the Court, though I maintain only in dicta, was unfortunate.
The latest assault on the Act has no such redeeming qualities. While I can appreciate academic curiosity over the statutory language – it would make for fun debate in hallways, the faculty lounge, or the classroom – the challenge here is, for all practical purposes, positively nihilistic. To tell you the truth, I don't think I can put the problem as well as the challengers themselves did:
The Government tries to make the statutory issue seem complex, but it is not. Only three ACA provisions need to be understood. Section 1311 instructs that states “shall” establish Exchanges. Section 1321 clarifies that in case of a state’s “failure to establish [an] Exchange,” HHS “shall ... establish and operate such Exchange within the State.” And then the Act grants subsidies for coverage “enrolled in through an Exchange established by the State under section 1311.” Any English speaker reading those provisions would immediately understand that if a state “fail[s] to establish [an] Exchange” and taxpayers instead enroll through an Exchange established by HHS under § 1321, no subsidies are authorized.
(Citations omitted.) Here is where we agree:
- The issue is not complex.
- Only three ACA provisions need to be understood. (Though others make the challengers' argument look even worse.)
- The statute's meaning can be immediately understood by reviewing the text. (Though understanding the context and history of Obamacare makes you wonder if you've been living in the same world as those who claim seriously to believe the story the challengers tell.)
What they think: that "such Exchange" clearly and unambiguously does not count as a "State Exchange" but instead means some other kind of exchange that is subject to none of the provisions relating to state exchanges. In particular, the participants in "such Exchanges" would receive none of the subsidies the Act provides for participants in "State Exchanges", thereby – as these very same lawyers have previously argued – undermining the entire statutory scheme. (For reasons relating to something called the Chevron doctrine, if the language is at all unclear, the government's interpretation should win.) Their prize for this feat of language wrangling would be, by 2016, the denial of insurance subsidies to about seven million people, with various and horrible ripple effects, reversing the progress we've made on the problems of and caused by the uninsured. All this because of an unwillingness to accept what the word "such" very clearly means, and, worse yet, because of a bizarre refusal to concede that it's at least unclear that a federally operated exchange in a state is not a state exchange within the meaning of the Act.
It's bad enough that the Supreme Court agreed to hear this case. But if somehow textualism were used to strike down the heart of Obamacare on these grounds, it would not only turn the Supreme Court into a laughingstock, it would denigrate textualism itself as patently not the serious, structurally-focused, and ideologically neutral method its defenders have struggled to claim it to be. For a more detailed argument, one that this challenge does not deserve, read Abbe Gluck's thorough analysis.
No one has to be a supporter of Obamacare, single-payer, or any other kind of health care reform. No one has to give up arguing to adopt another approach. Indeed, there may be valid legal challenges to aspects of the ACA. But just because you can typeset an argument to look like a brief, just because you really hate Obamacare, just because language could, in the abstract, be construed to say something it obviously does not mean, and just because, perhaps because of the confluence of these reasons, you have come honestly to believe in the righteousness of your objection: these are not reasons to treat a fundamentally unserious argument as anything more than an amusing curiosity. Unfortunately, the stakes are high, and I'm not amused. I'm open to being shown the error of my ways. But when you place on the word "such" the weight of the health of millions of people, you better have a good argument that Congress did not mean what it and everyone else on the planet believed it meant.