Media Attacks and King v. Burwell

While getting my daily fix of news, I came across more and more King v. Burwell articles – unsurprising given the March 4th oral argument. Nevertheless, it was the tone of the reporting that struck me, not the volume. Involving a simple statutory question, King is the most significant case facing the Supreme Court this term. And it just so happens that the statute affected is Obama’s signature legislative achievement. Consequently, the idea of rehashing the healthcare argument before the Court is inspiring derision, scorn, and in some instances mockery from the left.

Before jumping into this media storm, let’s summarize the issue. David King, a Virginia resident, did not want to purchase health insurance. Based on his age and condition, coverage would cost him over $600 a month, but a federal subsidy would reduce that figure to about $275 a month. Virginia was one of the many states that did not create its own exchange, therefore relying on a federal subsidy. However, the ACA stipulates that these subsidies were meant to support the consumers on exchanges, “established by the State[s].” Therefore, King contends that he should not receive the subsidy, in turn qualifying for an heavy cost-based exemption.

The U.S. Court of Appeals for the DC Circuit ruled in Halbig v. Burwell, a similar case, that these subsidies were reserved for states with exchanges, while the Fourth Circuit’s King ruling resulted in the opposite interpretation. Thus the Supreme Court’s involvement. 

Many media outlets have relentlessly and aggressively advanced a theory that King lacks merit, the product of a vindictive Republican party. The resulting reasoning: the Court shouldn’t dignify the argument with a hearing.

Simon Maloy, of Mother Jones, uses a rhetorical trick to make the reasonable argument appear ridiculous:

I’ve been trying to figure out how to best characterize and/or mock the legal reasoning at play behind the Halbig decision, and I think it can be boiled down to one word: Moops. I’m referring, of course, to George Costanza’s famous game of Trivial Pursuit against the Bubble Boy, in which Costanza tries to cheat his way out of losing by taking advantage of a misprint on the answer card: “Moops” instead of “Moors.”

By making the petitioners seem silly for even considering this argument, Maloy does his best to discredit them. However, any case involving statutory interpretation involves intricacies of language, and what Congress ultimately writes is the law (not their subconscious intention). In this instance, Democrats sloppily drafted the ACA, believing every state would create exchanges (which didn’t happen). A misprint on a Trivial Pursuit card is a little different, no?

The historical analogy has also been popular -- see Ian Millhiser’s “In Defense of Court-Packing” for Slate. After the Supreme Court struck down key pieces of the New Deal, Franklin Delano Roosevelt proposed a scheme to create new seats on the Court and fill them with liberals. This plan failed, but Millhiser makes a case for further executive authority, suggesting Obama consider a similar tactic. 

If you thought I was speaking about a more recent president, the truth is that FDR’s domestic achievements faced far greater threats from the Supreme Court than President Barack Obama’s. Sadly, however, there are early signs that today’s court may be headed to a similar, deeply partisan standoff with the president of the United States.

Is court-packing really the direction we need to go? Congress was too focused on whipping the votes to pass the ACA that they failed to construct it properly. The fact that a case like King is now before the Court should not baffle Democrats, and they can only blame themselves. 

In Salon, Jim Newell suggests a liberal strategy to again court John Roberts’ vote. Hoping to repeat NFIB v. Sebelius, Newell tries to rationalize the mind of Roberts:

On the one hand, John Roberts would love to kill Obamacare. It would resuscitate his reputation on the right -- including the four conservative justices whom he serves alongside -- following his treasonous upholding of the individual mandate in 2012. He would be the guy who threw Obamacare into a death spiral. Aces! On the other hand, it would be a joke of a decision and screw over millions and millions of people. But he could get rid of Obamacare! Though there’s not a good legal argument for that. But… no Obamacare? Tough call.

This paragraph hardly warrants a response. The idea that Roberts is sitting in his office devilishly plotting to gut the ACA to regain favor with Republicans is ludicrous.

The final foray into the world of liberal media is Jeffrey Toobin’s recent article in The New Yorker -- a scathing assault of the petitioners’ case.  

The congressional debate over the ACA included fifty-three meetings of the Senate Finance Committee and seven days of committee debates on amendments. The full Senate spent twenty-five consecutive days on it, the second-longest session ever on a single piece of legislation. There were similar marathons in the House. Yet no member of Congress ever suggested that the subsidies were available only on the state exchanges. This lawsuit is not an attempt to enforce the terms of the law; it’s an attempt to use what is at most a semantic infelicity to kill the law altogether.

Calling King  “frivolous” and “mean-spirited,” Toobin posits that because it’s not a constitutional challenge, it’s nit-picking. But that’s not the case. Statutory questions frequently come before the Court, many having little to do with the Constitution.

King v. Burwell is merely a byproduct of a poorly-written law, and interpreting its language falls squarely under the purview of the Supreme Court. Congress could have written the law more ambiguously; it could have left it vague. But no, the law specifically says that subsidies will be granted for exchanges established by the states. And despite the legislative history Toobin examines (which is in itself a slippery slope), the text of the law is what the Court will be interpreting.

So, what will become of the ACA? Where will the Court land?  Bush appointee, Judge Thomas Griffith delivered the opinion of the DC Circuit in Halbig. The final paragraphs provide insight into a potential SCOTUS ruling:

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process.

They’re reluctant about the consequences, not the ruling itself. It’s not about ObamaCare. It’s not about the millions of Americans already on federal healthcare. It’s about fairly interpreting the wording of a statute.

The Affordable Care Act may have survived a major constitutional test three years ago, but King v. Burwell is a legitimate challenge to the law’s language. Naturally, Democrats are concerned that congressional carelessness could wreck the ACA, but their attacks on the petitioners are irrational.  Justice Scalia wrote that words have a, “limited range of meaning … no interpretation that goes beyond that range is permissible.”  This quote speaks to the core of King’s argument, and if granted standing, he has every right to make this sensible claim before the Court.