HALLELUYAH
When you’ve had occasion to exclaim, for real, “Halleluyah,” you were feeling intense emotion that “Joy,” at least to me, doesn’t capture. I will name the emotion after the exclamation, at least until one of you comes up with a better name.
On Thursday June 25th, in a 24-carat win for the self-employed, the Supreme Court, as the New Yorker said, “put an end to years of court cases and congressional attacks against the Affordable Care Act, which means that millions of Americans will no longer live in a state of perpetual anxiety about health costs.”
An end to anxiety surely counts as Halleluyah. Had the petitioners in the case, King v. Burwell, prevailed, the self-employed in 2/3rds of the country (thankfully not in my state, California) would have seen apocalyptic cost increases. Six to seven million people who are not eligible for Obamacare tax credits would have seen their premiums jump an estimated 55%, according to the Urban Institute, due to “adverse selection.” Another 6.4 million would have also gotten hit with those premium increases, plus lost the tax credits they were eligible for.
It’s perfectly fine to stop reading now, but for those that want to keep going, let’s turn to
FURY
“Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government?’” thundered Justice Antonin Scalia in his furious, dripping, take-no-prisoners King v. Burwell dissent. Scalia has single handedly transformed Supreme Court dissents into performance art, and with this one he pins the needle on the fury meter. I imagine his law clerks equip him with a waterproof PC; at the end of each day they run a garden hose through his office window and hose off the spittle.
(Scalia’s enthusiasm for the meaning of words is second only to his enthusiasm for creating new words, such as “jiggery-pokery,” which appears later in the dissent. Is that an odd combination of hobbies? Perhaps. Note: a J.K. Rowling tweet suggested she was the inventor of “jiggery-pokery”, but in any event I’m pretty sure this was its first use in a Supreme Court ruling.)
Believe it or not, Scalia’s question sums up the entire case. If it means “established by the State or the Federal Government,” an insurance “death spiral” is averted in 2/3rds of the country. Anyway, just who would ever have dreamt that that’s what it means? Amy Davidson has a simple answer for Scalia: “every member of Congress who debated and voted on the law, whether for or against.”
Some are surprised to hear that a popular legal doctrine called textualism says that it matters not what Congress intended to write, only what they actually wrote into the law. I read the entire Supreme Court opinion as well as Scalia’s dissent, and as far as I can tell, both remain strictly within the confines of textualism; Congressional intent only appears to the extent Congress explicitly included their intent in the text of the law. So this boils down to a Wimbledon finals match between dueling textualists (*), with the winner deciding what the text says. In the end Scalia is on the losing side of a 6-3 thumping. Just what does the text say? This brings us to
COMPOSED EXASPERATION
Chief Justice John Roberts is the poster child for decorum. When looking for emotion in a Roberts opinion, you need to turn the gain way up, as far up as you have to turn it down with Scalia. And when I did that, what I imagined was a Montessori preschool director faced with a full contact food fight. His challenge is to get all the brats to behave while modeling the behavior he wants them to adopt. This is not an easy needle to thread.
Let’s call him Mr. John, which, in an alternate universe where he actually became a Montessori preschool director, might be what he would have his charges call him. He first directs his attention to one corner, where 535 members of Congress are drenched in a curious mixture of paste, apple juice and pulverized saltines. “[T]he Act is far from a chef d’oeuvre of legislative draftsmanship.” He patiently communicates this several times in different ways, both in writing and verbally at the announcement. Unfortunately, no members of Congress are present to personally receive this oblique suggestion regarding future behavior. As will hopefully become apparent later, this scolding cuts across both houses and both parties.
Mr. John next turns his attention to another corner, where we have the judges on the 4th Circuit Court of Appeals, which last heard the case. Skip forward to the end of Mr. John’s opinion, and you will see he affirms the 4th Circuit’s ruling. That’s an odd way for a court to get scolded, isn’t it? Bear with me. The 4th Circuit ruled that the text of the law was ambiguous, and, applying something called the Chevron doctrine, concluded it was up to the executive branch to decide how to interpret it. Deferring to the executive branch is the right thing to do in a lot of cases, but Mr. John says: come back here, boys and girls. Not so fast. Congress, he concludes, did not intend “such an implicit delegation” to the executive branch, because the implications are huge, both economically and politically.
“It is instead our task to determine the correct reading.” Tweet @4th Circuit: Interpret the law. Do your job. That’s why we pay you the big bucks. In hindsight, Roberts hinted at this during oral argument in March when he asked if a future President could yank tax credits from 2/3rds of the country, effectively destroying the individual insurance markets in those states.
At this point Mr. John has a choice: should he make the 4th Circuit judges do what they should have done in the beginning, or should he model a cheery “I’ll help!” attitude? If you were a Montessori preschool director, what would you do? Mr. John chooses the latter, and dives in, which leads us to
NUMBNESS
It’s easy to imagine why the 4th Circuit might not have wanted to dive in. It is mind-numbing, petty, and cynical. Here’s an analogy. You are tasked with putting on a magnificent banquet for 900 diplomats, to honor some great achievement. There are endless details: the guest list, the 4-course menu, and the 10-piece place settings. Everything is just so! Then a PETA lobbyist taps you on the shoulder and says, 600 of the seats have only 9 pieces; they are all missing the steak knife. The steak! Your expert staff heads off to add the missing knives.
Hang on a second, the PETA lobbyist says. Maybe there are only 300 guests, and what you have here is not 600 missing steak knives, but 5,400 unnecessary pieces of silver. Or perhaps steak is not on the menu, and what you have is 300 extraneous steak knives! Sure, it says right there on the menu: Steak. And the guest list says at the bottom: Total = 900. But maybe the chef didn’t really mean that! And what proof do we have those 600 guests were supposed to get fed an entrée? We must defer to the place setter!
Using what might be called the principle of least disturbance (Scalia calls this doing the “least violence to the text”), Roberts chooses not to defer to the place setter or rewrite the menu. Which brings us to
MIRTH
In a manner classified by the FDA as general anesthesia, Roberts tediously lays out how Scalia’s interpretation of the law – that tax credits are not available in 2/3rds of the country – is untenable, because it is inconsistent with so many other provisions of the law. Moreover, he cites a Supreme Court opinion, coincidentally signed by a certain Justice named Antonin Scalia, which directly refutes Scalia’s position. If this were a Sopranos episode, the tweet would be: RYFO, @Tony. In Roberts-speak: “Read your eloquent opinion.”
Five justices join Roberts, but Scalia is not one of them. No matter; it’s game over. Which leads us to
EXCITEMENT
Reading Roberts’ emotions is famously difficult, since he hides them so well and considers hiding his emotions essential to his reputation. That said, my reading – and I will try to say this as positively as I can, this being a preschool and all – is that he’s really excited about the opportunity to work on future cases that involve, you know, constitutional issues.
If, say for argument, there’s some part of a law that needs to be interpreted, and it’s not a subsection, not a sub-subsection, but a sub-sub-subsection of an ancillary provision, maybe that’s not the kind of mind-numbing case you want to bring to the Supreme Court more than once every dozen or so lifetimes. The tells of Roberts’ eager anticipation of future constitutional cases go beyond the hints in his opinion cited above (e.g. chef d’oeuvre, do your job, read your eloquent opinion). This was a case raised by conservatives who were bitter opponents of Obamacare, and brought to a Supreme Court with a conservative majority. In a relatively brief, unmajestic opinion written by a conservative chief justice, they lost, and they lost big. Moreover, the ruling makes it more difficult for President Jeb Bush to wreak havoc on the self-employed, as he and every other Republican candidate has pledged to do. Here is also what Dahlia Lithwick had to say:
But I was also struck at the time of oral argument by the chief justice’s decision not to broadcast same-day oral arguments and to ask almost no questions himself. Even the decision to release this opinion with several more days in the term strikes me as Roberts signaling that this case was never quite the droid we were looking for.Which brings us to
CHAOS
Words fail me again. The emotions Obamacare opponents felt, or claimed to feel, were too numerous and mixed too thoroughly. Outrage. Relief. Stunned disbelief. Grim determination. Aimless confusion.
If there’s a better word for this soup of emotions, let me know.
Let’s cut to the chase. When pondering the Republican reaction to a hypothetical victory in the King v. Burwell case, several columnists reached for the analogy of the dog that caught the car. That’s a little unfair. A dog who chases cars probably isn’t aware of the fact that the whole exercise depends on not catching the car, while there are some Republicans who privately admitted losing the case was in their best interest. That they didn’t file an amicus brief in support of the Obama administration is one indication – among many, it turns out – that the GOP health care policy team desperately needs adult supervision.
Instead of car chasing, let’s consider the game of golf, which will be played at Pebble Beach, just to give the analogy a locale. Governor Romney and President Obama tee off, and both balls land on the green. Romney then says no, that’s not my ball, and insists on teeing off again. Oookay. Whereupon he turns around, takes a mighty swing, and hits a perfect drive into the ocean.
Here’s the thing. If health care is golf, then Republicans don’t want to play golf. They want to watch golf, something Romney learned too late. To Republicans, health care is a spectator sport. Article after article after article after article shows Republicans don’t want to play the health care game, or are terrible at it when they do play. Jeff Young, Jason Linkins, and Jonathan Chait chronicle the Republican health care policy team’s penchant for self-parody. Earlier Jonathan Chait came up with the Heritage Uncertainty Principle: "Republican health-care proposals reside in a state of quasi-existence, and any attempt to summon them into political reality will cause them to disappear."
Which brings us to
BAFFLING SERENITY
With 2/3rds of the country facing a total collapse of their individual insurance markets, the lead plaintiff, David King, was, according to the New York Times, unperturbed:
Mr. King said that he was not really worried about the outcome of the case, King v. Burwell, because as a Vietnam veteran, he has access to medical care through the Department of Veterans Affairs.At oral argument, Scalia raised this very point. Since the consequences are so dire, surely Congress will act to fix it! To which Solicitor General Don Verrilli responded: “This Congress?”
If he wins, Mr. King said, “the left will blow it out of proportion and claim that eight million people will lose their health insurance.” But he said lawyers had assured him that “things are in play to take care of the problem.”
Being self-employed, under 65, and not a veteran, I don’t have much to say to Mr. King. At this point let us thank Mr. King for his military service, and move on.
THE END (Sequels coming in 2016!)
(*) Update: I may be misusing the word textualism here. Abbe Gluck argues that the majority opinion does not use textualism, and she surely knows a lot more about the subject than I do. Nevertheless every reference to congressional intent or purpose seemed to me grounded in the Act's text. And Abbe says:
This is not to say that King is an atextual decision. To the contrary, it turns on a sophisticated, close reading of the ACA’s provisions and structure and it does not so much as whisper the phrase “legislative history.” But the opinion does not use the tools of textualism to shirk responsibility for the result or as a substitute for justifying its decision in the context of what Congress actually did.
