My parents used to own a small house with a large backyard, in which my mother cultivated a beautiful garden. At some point, however – I don’t remember why – my father looked at the official deed defining their property, and received a shock. According to the text, the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base.
On examination, it was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language. After all, it would have been ludicrous and cruel to take away most of my parents’ property on the basis of sloppy drafting, when the drafters’ intention was perfectly clear.
But it now appears possible that the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an equally obvious typo. And if you think this possibility has anything to do with serious legal reasoning, as opposed to rabid partisanship, I have a long, skinny, unbuildable piece of land you might want to buy.
Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. But the fact that the suit is ridiculous is no guarantee that it won’t succeed – not in an environment in which all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law.
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To understand the issue, you need to understand the structure of health reform. The Affordable Care Act tries to establish more-or-less universal coverage through a “three-legged stool” of policies, all of which are needed to make the system work. First, insurance companies are no longer allowed to discriminate against Americans based on their medical history, so that they can’t deny coverage or impose exorbitant premiums on people with pre-existing conditions. Second, everyone is required to buy insurance, to ensure that the healthy don’t wait until they get sick to join up. Finally, there are subsidies to lower-income Americans to make the insurance they’re required to buy affordable.
Just as an aside, so far this system seems to be working very well. Enrollment is running above expectations, premiums well below, and more insurance companies are flocking to the market.
So what’s the problem? To receive subsidies, Americans must buy insurance through so-called exchanges, government-run marketplaces. These exchanges, in turn, take two forms. Many states have chosen to run their own exchanges, like Covered California or Kentucky’s Kynect. Other states, however – mainly those under GOP control – have refused to take an active role in insuring the uninsured, and defaulted to exchanges run by the federal government (which are working well now that the original software problems have been resolved).
But if you look at the specific language authorizing those subsidies, it could be taken – by an incredibly hostile reader – to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. Furthermore, the consequences if the suit were to prevail would be grotesque. States like California that run their own exchanges would be unaffected. But in places like New Jersey, where GOP politicians refused to take a role, premiums would soar, healthy individuals would drop out, and health reform would go into a death spiral. (And since many people would lose crucial, lifesaving coverage, the deaths wouldn’t be just a metaphor.)
Now, states could avoid this death spiral by establishing exchanges – which might involve nothing more than setting up links to the federal exchange. But how did we get to this point?
Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes – and the willingness of the Supremes to hear it is a bad omen.
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.