by Jon N. Hall 7/9/15
In “Pimento,” the ninth episode of Better Call Saul, AMC’s new series about an unethical lawyer, trial lawyer Chuck McGill heatedly accuses his shyster brother Jimmy of not being “a real lawyer.” Chuck then exclaims: “The law is sacred!”
Americans who cling to that “quaint” idea or who just care about the integrity of The Law may be displeased with the June 25th ruling in King v. Burwell. Some may even think that the Supreme Court’s ruling in King is an insult to logic and language, and that the Court has made itself into a Humpty Dumpty: “When I use a word it means just what I choose it to mean — neither more nor less.”
Bryan A. Garner, author of Garner’s Dictionary of Legal Usage (2011) and himself a lawyer, has called Antonin Scalia “the greatest living legal writer,” (he does so in this video). Justice Scalia gives ample evidence of that in is his dissent in King, wherein he writes:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.
Scalia is referring to Chief Justice Roberts’s ruling in King. Citing chapter and verse, Scalia tears into the arguments of the ruling opinion. Three times Scalia seems to do a riff on “Frailty, thy name is woman” from Hamlet, such as when he writes “Contrivance, thy name is an opinion on the Affordable Care Act!”
Michael F. Cannon of the Cato Institute is one of the two lawyers who came up with the IRS challenge in his 78-page paper “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits under the PPACA.” Despite conceiving of the challenge, Cannon was initially skeptical about its chances of victory. But that all changed when he closely examined the legislative history of ObamaCare. Congress clearly intended that subsidies were to be available only in “Exchanges established by the State.” Those who still cling to the notion that the five words in question were a typo or a drafting error need to read Mr. Cannon’s March 29 article “Why the Supreme Court Will Overrule the IRS.” Congress couldn’t imagine that the states might have minds of their own and resist.
Anyone who’s watched the news and has heard Jonathan Gruber’s repeated claims about the exchanges knows that the tax credit subsidies were deliberately set up to be available only in state exchanges, not federal exchanges. Congress was trying to “squeeze” (video) the states to cooperate. But that should come as no surprise, for Congress did the same thing with Medicaid. On PDF-page 35 of his original paper, Cannon writes:
Many statutes seek to encourage state cooperation by threatening to cut off funding to recalcitrant states.120 The PPACA contains this feature in other provisions such as the Medicaid expansion.121 Under the Act as passed, states that failed to expand their Medicaid programs to those below 138 percent of the federal poverty level would have lost all federal Medicaid grants, which account for 12 percent of state revenues.122 The Act imposes a “maintenance of effort” requirement on states’ Medicaid programs that only lifts upon certification of an Exchange “established by the State under section 1311.”
So under the law that Congress enacted, states that didn’t expand Medicaid would lose all Medicaid funding. That seems parallel to the plaintiffs’ argument about the subsidies: cooperate or lose subsidies. On PDF-page 59, Cannon adds:
Finally, conditioning the availability of tax credits on states creating Exchanges is no more absurd than Congress’ decision to condition Medicaid funds on states implementing the program. As written, the PPACA threatened to withhold all funding for the Medicaid expansion and pre-existing Medicaid programs from noncompliant states. Had any state refused to cooperate under these terms, enforcing the statute would compromise the PPACA’s goal of expanding coverage. Indeed, it would result in the loss of coverage for existing Medicaid beneficiaries. Yet there is no question that Congress intended to give states this choice, creating a risk that recalcitrant states could undermine achievement of the PPACA’s stated goal of expanding coverage.
There you have the incoherence of ObamaCare, or at least part of it. Roberts never mentions Medicaid. Scalia, however, does mention Medicaid, and repeatedly, including five times on the last page of his dissent. One thing Scalia’s dissent doesn’t do, however, is examine the “IRS Rule.”
But the IRS Rule was the bone of contention that started this whole mess. The reason Scalia’s dissent never mentions the IRS Rule is because Roberts’s majority opinion never makes a determination of its legality. And the reason Roberts doesn’t address the legality of the IRS Rule is because he doesn’t have to go there. Roberts buys into the “Chevron deference” argument that the language in question is ambiguous and that the IRS is to be given deference in its regulation about who gets tax credit subsidies to buy health insurance.
What if the Court had gone the other way and ruled that the language in question, “Exchange established by the State,” was unambiguous and that there was nothing in the rest of the law, no overarching “context,” that made it ambiguous? It is generally thought that Republicans would be in a pickle as more than six million folks would lose their health insurance subsidies, and Republicans would then be expected to fix the problem. But a bigger problem might have loomed had the Court found for the plaintiffs.
Had the plaintiffs prevailed in King, it would have meant that The Law had been broken. It would have meant that the IRS Rule was illegal, and that the IRS had no authority to make the regulation. Such a ruling would have meant that even now a crime is being committed. The crime involves the diverting of billions of dollars of public monies to private parties; monies that should go into the U.S. treasury as taxes are going instead to health insurance companies. Those monies would need to be recovered; after all, other taxpayers must make up for the shortfall. If a crime is being committed, it must be stopped and the perpetrator(s) must be prosecuted and brought to justice. Otherwise, there would seem to be no consequences for public officials who break The Law.
Inasmuch as the Court has already issued some 9-0 brushbacks to the president for exceeding his authority with his executive actions, it would have been interesting to see what Obama would have done if the Court held that his IRS Rule also went too far. Would Obama’s Justice Department go after the perps? What if the evidence led to Obama?
ObamaCare is like herpes, it’s the gift that keeps on giving. Regardless of which way the Court had gone, there’d be ugly gaping sores to look at. Of course, for those who are getting free stuff, ObamaCare is great. But for those who worry about the deficit or who care about The Law, not so much.
A ruling for the plaintiffs might have created a crisis. So Justice Roberts may have saved the country from a crisis. But should he have done so? Maybe we needed this crisis. Perhaps the Chevron doctrine isn’t really appropriate for central issues like the financing of a huge entitlement. Perhaps ambiguity shouldn’t be tolerated in “big laws.” (Read the King ruling and its dissent and form your own opinion.)
We’re fast becoming a nation of men, of “charismatic” leaders who know what’s best for us. (“It’s the right thing to do.”) And the very idea of “The Law,” of a code etched in stone, is becoming quaint.
Jon N. Hall is a programmer/analyst from Kansas City. • (641 views)