During the next nine months, possibly before the end of he summer, the United States Supreme Court (USSC) will deliver three consequential decisions. Two will impact our country for years to come. The other will help define the legacy of the presidency of Barack Obama. It is the latter that will be considered first.
The High Court has already heard oral arguments in the case of King v. Burwell; a test of the legality of the nationwide subsidies that are an integral part of Obamacare (OC). King is one of four different plaintiffs (1) who have taken their pleading through lower courts to reach the USSC. The defendant is Sylvia Burwell, the new Secretary of Health and Human Services who recently replaced Kathleen Sebelius.
In each case, plaintiffs are charging that because of a short, specific phrase in the 832-pages of OC, subsidies can only be provided to individuals in states that have set up their own exchanges (2). Precluded from receiving those same stipends are people who live in states without their own exchanges, and who thus, had to secure coverage through the federal exchange (3).
The language in the aforementioned “short, specific phrase” is clear; i.e. subsidies can only be awarded to folks who buy insurance through exchanges “established by the state.” Plaintiffs have argued that this statement trumps the intended purpose of OC as well as other references in the law that make subsidies available to everyone, regardless of whether or not their state of residence set up an exchange.
The contents of the preceding paragraph raise the question “What was the legislative intent in passing OC?” It was to make affordable healthcare available to as many people as possible, in particular through the distribution of subsidies to those who found the full payment of premiums beyond their means. To purposefully insert into OC, four words that would undercut that intent makes absolutely no sense. Indeed, it has been argued by Burwell’s lawyers that no member of Congress who voted for OC would have done so knowing that it contained a single, self-defeating four-word phrase.
In ruling on King v. Burwell, the USSC can exercise one of three options: (1) dismiss King’s pleading as without merit; (2) support plaintiff and declare that federal subsidies are illegal with no remedy recommended; or (3) declare the federal subsidies illegal and remand the matter back to Congress so that the problematic language in OC can be removed.
Option #1 would mean that OC can proceed on its present path without repercussions. But, option #2 would trigger chaos as millions of citizens who have already received subsidies would be denied them with the attendant loss of their healthcare coverage. It would also push OC into a death spiral. That the USSC would create such an unholy mess is unimaginable. That brings us to #3 and what ought to be a simple, common sense amendment to OC; i.e. just remove the problematic phrase. But, to imagine that an Obama-hating, Republican-controlled Congress would even entertain such a straightforward solution is fanciful thinking at best, and delusional at worst. No, it is far more likely that the GOP will seek to make all sorts of changes, turning OC into something very different, thus destroying the president’s signature piece of legislation and damaging his legacy in the process.
Court-watchers have already opined that the ultimate vote on the suit will result in a small 5-4 majority. Kagan, Sotomayor and Ginsberg are seen as pro-Burwell; Alito, Scalia and Thomas as pro-King. That would leave Justice Kennedy and/or Roberts as the pivotal “swing” vote(s) that decides the case. The actual decision is expected next month or in early May and no one is placing any bets on the outcome.
The next major pleading to come before the court will deal with the question of whether or not the president exceeded his constitutional authority by issuing an Executive Order that gave some temporary relief to approximately five million illegal immigrants who have already established their US residence. (4) Legal scholars have weighted in, stating that this case is most likely to be decided in Obama’s favor.
The final major ruling to come out of the USSC will be over the constitutional right of gays to marry. What is at question here is whether or not the Constitution’s “equal protection” clause extends to homosexual citizens who wish to marry a same-sex individual. The court is apt to be swayed by what has become a growing swell of support for gay marriage which has already been legalized in a majority of individual states. This may be the easiest of the court’s three critical decisions. It will settle this matter once and for all, and change our country forever.
1. In addition to King, the other litigants are Habig, Pruitt and the state of Indiana. The latter’s suit named the IRS as defendant inasmuch as that government agency is the one that has the responsibility of paying out the OC subsidies.
2. Kentucky is the best example of the existing 16 state exchanges.
3. Texas is one of 34 states that chose not to set up their own exchange.
4. This suit as been cited in previous blogs, referred to in one as a “sop” that House Speaker John Boehner handed the Tea Party Caucus to appease their call for the president’s impeachment.