Heading the Supreme Court off at the Pass

Two federal appeals courts are now split over the question of whether the IRS can establish federally run exchanges in place of state exchanges in the thirty-six states that did not create health insurance exchanges envisioned in the ObamaCare law. It is likely the issue will be decided by the Supreme Court. Some time ago, I learned not to predict how the Supreme Court will deal with controversial issues. I have a preference -- a strong preference -- but, that is not what this discussion is about. This is a look at how we should resolve the problem, not how the Supreme Court will or should decide the issue.

This is not the first time that legislation says one thing and the courts have been faced with deciding whether to follow the clear wording or give a different meaning somehow discerned to be the law’s unstated intent. More often than not, the courts have in the past said, the law means what it says and that it is up to Congress to amend the law. Technical Corrections Acts are actually fairly common. Technical Corrections are passed to fix the problems created by previous legislation.

There is an old saying sometimes attributed to Bismarck, “To retain respect for sausages and laws, one must not watch them in the making.” Nancy Pelosi famously said that Congress should pass ObamaCare so that we can find out what is in it. That is exactly what is happening. We are finding out what is in the law. To be a little more precise, the Supreme Court is now telling us what is in it.

The wording of the law suggests that the drafters expected the law to be so attractive that all states -- or at least most states -- would participate in the “new” system. In the past, the federal government has brought unrelenting pressure to bear on states with the audacity not to behave as expected after laws were enacted. But that is not what has happened. Opposition to the law has proven to be much greater than anticipated. The limited number of state-sponsored exchanges, unfavorable public opinion, and recent court decisions have all been troublesome for supporters.

The initial 2012 Supreme Court decision upheld ObamaCare. Written by Chief Justice John Roberts, the opinion says, “It is not our job to protect the people from the consequences of their political choices.” One could conclude that this means Roberts will decide that it is not the Court’s job to protect the people from words actually in the law.

This all suggests that the Supreme Court could decide to block the use of IRS established exchanges. This does not mean, however, that it will.

But there is a simple fix. Neither the left nor the right will like it because both sides see potential political gains from continuing the fight through the 2014 and 2016 elections. Should the Supreme Court overturn the federal exchanges, Democrats will lose much of their cherished legislation. Democrats are now carrying the public opinion burden of having said, “If you like your insurance, you can keep your insurance.” They shouldn’t want to carry the burden of a poorly-written law.

Republicans, however, are faced with the fact that millions could lose coverage they obtained through the federal exchanges. They can’t favor that outcome politically.

The simple fix is for Congress to pass a technical correction that allows individuals to participate in federal exchanges if they choose, but permit states to approve policies. Also permit individuals and businesses to keep coverage they had before ObamaCare was passed, and permit policies that have been cancelled to be reissued. Even the least expensive policies under ObamaCare are more expensive the many policies that individuals and businesses had previously. Certainly some states will allow policies with minimum coverage. ObamaCare was supposed to cover everyone, but the fact is that most people who didn’t have coverage before ObamaCare was passed still don’t have coverage. That is a political reality that should sink in. For those millions, a major medical policy is better than no coverage.

The Republican-controlled House has voted dozens of times to repeal ObamaCare. They have shifted to “repeal and replace,” but have yet to say what they will replace ObamaCare with. They can start with replacing one of the worst parts.

It is a fantasy to believe a simple change like this will fix all or even most of the problems with ObamaCare. It would fix some of the problems and help millions obtain coverage.

Could we accomplish more than just fix this problem? Not in the current political environment. If only a few Democrats and a few Republicans in Congress were to join together, we might make progress. If a few worked together to fix this problem that just maybe the parties would then turn to fixing other problems.

Two federal appeals courts are now split over the question of whether the IRS can establish federally run exchanges in place of state exchanges in the thirty-six states that did not create health insurance exchanges envisioned in the ObamaCare law. It is likely the issue will be decided by the Supreme Court. Some time ago, I learned not to predict how the Supreme Court will deal with controversial issues. I have a preference -- a strong preference -- but, that is not what this discussion is about. This is a look at how we should resolve the problem, not how the Supreme Court will or should decide the issue.

This is not the first time that legislation says one thing and the courts have been faced with deciding whether to follow the clear wording or give a different meaning somehow discerned to be the law’s unstated intent. More often than not, the courts have in the past said, the law means what it says and that it is up to Congress to amend the law. Technical Corrections Acts are actually fairly common. Technical Corrections are passed to fix the problems created by previous legislation.

There is an old saying sometimes attributed to Bismarck, “To retain respect for sausages and laws, one must not watch them in the making.” Nancy Pelosi famously said that Congress should pass ObamaCare so that we can find out what is in it. That is exactly what is happening. We are finding out what is in the law. To be a little more precise, the Supreme Court is now telling us what is in it.

The wording of the law suggests that the drafters expected the law to be so attractive that all states -- or at least most states -- would participate in the “new” system. In the past, the federal government has brought unrelenting pressure to bear on states with the audacity not to behave as expected after laws were enacted. But that is not what has happened. Opposition to the law has proven to be much greater than anticipated. The limited number of state-sponsored exchanges, unfavorable public opinion, and recent court decisions have all been troublesome for supporters.

The initial 2012 Supreme Court decision upheld ObamaCare. Written by Chief Justice John Roberts, the opinion says, “It is not our job to protect the people from the consequences of their political choices.” One could conclude that this means Roberts will decide that it is not the Court’s job to protect the people from words actually in the law.

This all suggests that the Supreme Court could decide to block the use of IRS established exchanges. This does not mean, however, that it will.

But there is a simple fix. Neither the left nor the right will like it because both sides see potential political gains from continuing the fight through the 2014 and 2016 elections. Should the Supreme Court overturn the federal exchanges, Democrats will lose much of their cherished legislation. Democrats are now carrying the public opinion burden of having said, “If you like your insurance, you can keep your insurance.” They shouldn’t want to carry the burden of a poorly-written law.

Republicans, however, are faced with the fact that millions could lose coverage they obtained through the federal exchanges. They can’t favor that outcome politically.

The simple fix is for Congress to pass a technical correction that allows individuals to participate in federal exchanges if they choose, but permit states to approve policies. Also permit individuals and businesses to keep coverage they had before ObamaCare was passed, and permit policies that have been cancelled to be reissued. Even the least expensive policies under ObamaCare are more expensive the many policies that individuals and businesses had previously. Certainly some states will allow policies with minimum coverage. ObamaCare was supposed to cover everyone, but the fact is that most people who didn’t have coverage before ObamaCare was passed still don’t have coverage. That is a political reality that should sink in. For those millions, a major medical policy is better than no coverage.

The Republican-controlled House has voted dozens of times to repeal ObamaCare. They have shifted to “repeal and replace,” but have yet to say what they will replace ObamaCare with. They can start with replacing one of the worst parts.

It is a fantasy to believe a simple change like this will fix all or even most of the problems with ObamaCare. It would fix some of the problems and help millions obtain coverage.

Could we accomplish more than just fix this problem? Not in the current political environment. If only a few Democrats and a few Republicans in Congress were to join together, we might make progress. If a few worked together to fix this problem that just maybe the parties would then turn to fixing other problems.