With the House having passed a healthcare bill, and the Senate close to passing a version, there is a lot of debate over the specifics of the bills.
Shameless Democrats like Hillary Clinton, Elizabeth Warren and Bernie Sanders portray Republicans as setting out to kill tens of thousands of Americans. In the wake of the shooting of Republican Congressmen by a Sanders-supporter spouting similar talking points, the false death claims are nothing short of incitement to violence.
Republican politicians are falling all over themselves to portray the bills as repeal and replace, but the Republican effort more fairly is an attempt to alter Obamacare. The law has had almost 7 years to work its way into the fabric of the economy and health care system and to expand its reach. Understanding how politically painful true repeal will be, Republicans are shying away, as Yuval Levin correctly assesses in National Review:
The case for repeal was strongest in the three or four years between the enactment and implementation of Obamacare. As more time passes since the beginning of implementation three and a half years ago, and more people’s lives become intertwined with the program for good and bad, the case for addressing Obamacare’s immense deficiencies by repeal weakens as a practical matter in favor of a case for taking them on by alteration.
The essence of Obamacare, that government has to provide healthcare for all and that all have right to look first and foremost to government for healthcare, is so deeply entrenched at this point, that Republicans don’t have the stomach to unwind that paradigm.
It didn’t need to be this way.
When I think about how we got to this point, I think of the Supreme Court decision in June 2012 upholding Obamacare’s mandate penalty against constitutional challenges focused on the commerce clause — the argument that the federal government had no power to regulate the failure to engage in commerce (i.e., not buying an insurance policy), and the corollary that government could not force individuals to engage in commerce (i.e. to buy a policy).
That was a winning argument, ultimately. The Supreme Court (5-4) held that the Obamacare mandate was not constitutional under the Commerce Clause.
But then Chief Justice Roberts salvaged the law by siding with the liberal block of four Justices in finding Obamacare’s mandate penalty was authorized under Congress’ taxing power. It was an outrageous holding, one correctly excoriated by the four dissenters:
For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it…Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry….What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists….The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax….The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions,The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty…The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
There were commenters, including conservative commenters, who saw a silver lining in the Supreme Court’s ruling. I disagreed, and saw that the law, once entrenched, likely never would be repealed, Stop the self-delusion (June 28, 2012):
Some well-meaning people are peddling the notion that today’s Obamacare decision was a long term victory, that we lost the battle but won the war, that there was some master plan by Chief Justice Roberts to gut the expansion of Commerce Clause power under the fig leaf of a majority ruling upholding the mandate under Congress’s taxing power….If this were some other more narrow law, if this was not a monumental takeover of the most private aspects of our lives, if this monstrosity would not cause such long term damage to our health care system, if this law was not Obamacare ….I might be inclined to agree with you.But it is Obamacare, it is the takeover of a substantial portion of our economy which empowers the federal government to write tens of thousands of pages of regulations telling us how to live and how to die.This was the hill to fight on for any conservative Justice of the Supreme Court….We live to fight another day, but don’t tell me we won because someday possibly in the future in some other case with some other set of Justices we maybe might achieve some doctrinal benefit from the Commerce Clause ruling.So please don’t delude yourselves. Today was a bitter loss because it was one we should have won.
Mark Levin saw the decision for the disaster it was:
We lost in the Supreme Court again in 2015 on the issue of whether subsidies were available on federal exchanges.
This time it was a 6-3 decision with Roberts again leading the way in what the dissent again correctly noted was rewriting the law. Scalia’s dissent, joined by Thomas and Alito, was stinging, and in my opinion correct as to the absurdity of the Court contorting itself to save the law (as Roberts did in the original Obamacare challenge):
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. [at 1]
Scalia pointed out that the words have a plain meaning:
This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” …. [at 2, italics in original]
Scalia argued — persuasively — that the overriding goal seems to be saving Obamacare, not exercising normal judicial interpretation of plain language:
“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved. [at 2-3]
Scalia wrote that the majority opinion rewrote the law “with no semblance of shame”:
The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) [at 3]
Looking back over multiple decisions from the Court to rewrite Obamacare in order to save it, Scalia insisted that the law now should be called SCOTUScare:
Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual “shall” maintain insurance or else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. 567 U. S., at ___–___ (principal opinion) (slip op., at 15–45).The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. 567 U. S., at ___–___ (principal opinion) (slip op., at 45–58). Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere.We should start calling this law SCOTUScare. [at 20-21, emphasis and hard paragraph breaks added.]
The legacy of this Court, Scalia wrote, will live on just as Obamacare, but in infamy:
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.I dissent.
Because Obamacare is so entrenched, we’re left to an alteration strategy.
For old time sake, can we at least sometimes refer to it as a SCOTUScare alteration?
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