What is “the state”? On that question hinges the fate of Obamacare, and perhaps the fate of the nation.
On Wednesday the Supreme Court of the United States heard arguments in King v. Burwell on the matter of whether subsidies provided by the federal government to purchasers of insurance under the Affordable Care Act are available in all states or just some.
That’s because the plain language of the law (in Section 36B) states that “premium assistance” is only available to taxpayers who enrolled in Obamacare coverage through an exchange “established by the State” under Section 1311 of the Patient Protection and Affordable Care Act.
You and I would assume that “established by the State” would mean just what it says — a health-care exchange that was put together by a state. Not the United States, mind you, but a state. Not the state of Libya or the state of Japan either — but specifically a member state in the United States, which as defined by Congress includes the 50 states plus the District of Columbia.
Since only 14 of those 51 defined states set up exchanges “established by the state,” taxpayers in 36 states plus the District of Columbia should not be eligible for Obamacare subsidies. Those 37 “states” opted not to participate in Obamacare directly but rather told their citizens to purchase Obamacare insurance through an exchange established by the federal Department of Health and Human Services.
So far as anyone knows, the Department of Health and Human Services is not a state and therefore purchasing health insurance through an exchange established by HHS should not qualify a taxpayer for a premium subsidy that is available only to those who purchased their insurance on an exchange “established by the state.”
But just because HHS has never been a state before, doesn’t mean that the Supreme Court can’t make it one. After all, this is the same court which already turned the Obamacare mandate into a tax, a few short months after Congress assured us it was anything but a tax!
In essence, what the court is being asked to do now is confirm that the only “controlling legal authority” (to quote Al Gore from so many years ago) in our country these days is President Obama. Whatever Obama wants, Obama gets — even if it means turning the black-robed Supreme Court into a barrel of monkeys.
At least four justices — Ginsburg, Breyer, Sotomayor and Kagan — have already made it clear that they will do whatever is necessary in order to give Obama what he wants. They worried that ending the subsidy in 37 states would put Obamacare into a “death spiral,” and they were desperately looking for ways to avoid that. Indeed, listening to the four liberal justices lay the groundwork for their opinion Wednesday was akin to watching a team of contortionists on “The Ed Sullivan Show” bend themselves into pretzels — all for the sake of avoiding the truth.
It is probably just a matter of time before they vote (with the connivance of Chief Justice Roberts and/or Associate Justice Kennedy) to confirm that the state is whatever Obama declares it to be. As the Sun King, Louis XIV of France, is reputed to have declared, “L’etat c’est moi.” (The state, it is I.) Even more relevant in this case is the king’s declaration that, “It is legal because I wish it.”
That is the position of President Obama and his team of lawyers. They are arguing essentially that it doesn’t matter what the law says. They say that Congress MUST have intended for every participant in Obamacare to be eligible for subsidies because otherwise the system would collapse. They are right about the collapse, but they are wrong about congression-al intent. Nor should the Supreme Court be envisioned as a judicial backstop to protect Congress from the consequences of its own bad laws.
Those consequences should have no bearing on the decision by the Supreme Court about the facts of the case. The ill effects of Obamacare’s hastily built and unread-when-passed legislation should redound to its creators — the Democratic Congress, President Obama and Jonathan Gruber.
Wait a minute... Jonathan Gruber? Who is he?
Gruber is credited with being one of the chief architects of Obamacare, and as such knows a thing or two about it.
You may remember that a few months ago Gruber was exposed in the national media for his comment that “the stupidity of the American public” was “really, really critical to get [Obamacare] to pass.”
More importantly, he confirmed that the Affordable Care Act “was written in a tortured way” to accomplish political goals — one of those goals being to give the individual states a stake in the success of Obamacare.
Gruber confirmed in a January 2012 video that the Obamacare subsidy (or tax credit) was intended ONLY for citizens who used state-established health-insurance exchanges, not for customers of the federal exchange. That confession was videotaped more than 18 months before the plaintiffs in King v. Burwell filed their initial complaint.
Knowing that, it is astounding that the case is even being seriously debated. Gruber already told the world that the distinction between state-established exchanges and the federal exchange was deliberate, purposeful and done with forethought. It was intended as a cudgel to force states to participate in Obamacare as full partners:
“I think what’s important to remember politically about this is, if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits,” Gruber said. “But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country.”
After listening to Gruber, it is obvious there should be a summary judgment in favor of the plaintiffs and against the United States government. Gruber made it clear in 2012 that this language was included intentionally in order to encourage the states to set up their own exchanges by depriving a benefit from them if they did not.
“I hope,” he said, “that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”
But astoundingly the attorney for the plaintiffs never even brought up the Gruber confession in his oral arguments before the court last week. It’s enough to make you think maybe the “fix” is in — that we the people are being taken for a ride, the kind of ride that Jimmy Hoffa got just before he disappeared.
The Supreme Court’s decision in June could indeed result in a death spiral. The question is whether it will be the death spiral of Obamacare or the death spiral of the republic.