Wednesday, September 23
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"Thunderdome" and "King v. Burwell"

skepticEspecially during the time that potentially landmark constitutional cases are pending or being argued before the Supreme Court, I haunt the pages of Balkinization, the blog edited by Prof. Jack Balkin of Yale Law School. The dozens of people who contribute to the blog – Prof. Balkin writes for it directly only on occasion – are always luminaries of the legal profession, almost always constitutional law, and often senior faculty of same at first-tier law schools. The pending case of King v. Burwell is no exception. But the current case – the latest chapter in the ongoing real-life melodrama of Obamacare and its multiple discontents – is perhaps unique in being revelatory, not only of the minutiae and intricacies of the Affordable Care Act (ACA), but even more so of our far deeper malaise in the relationship between the Government and the Governed. The latest Balkinization blog contains posts relating to both.

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The plaintiffs’ case in King reminds me of the overall plot line of the old 70s and middle-80s movies Mad Max and Mad Max: Beyond Thunderdome: people in a post-apocalyptic world pitted against each other in a … well … in a pit, and forced to fight to the death, with the title role of Max played by the young Mel Gibson, all the ensuing mayhem being presided over by Tina Turner as Aunty Entity. (I won’t bore you with details: the people who have not seen these movies at any given time would probably fit comfortably in a telephone booth.) Just as Aunty Entity throws Mad Max into the arena to engage in life-or-death combat, the Obama Administration – so the plaintiffs in King allege – have placed the Federal Government and the States in a similarly adversarial relationship in a sinister effort to force the latter to create State insurance exchanges through a kind of carrot-and-stick arrangement: the carrot – again, so the plaintiffs argue – is Federal largesse in the form of health-insurance subsidies and the stick is the absence of such subsidies for States that elect to not set up such exchanges and instead opt for the default of allowing the Federal government to set up exchanges on their (the demurring States’) behalf. The result – as far as I know, everyone on both sides of the case agrees with this – would be that insurance costs in the demurring States would increase exponentially, causing people now insured through ACA, who now rely on subsidies to make health insurance affordable, to lose their health insurance in numbers well into seven, it may well be eight, digits. Aside from the catastrophic costs involved in such an outcome – should the Court side with the plaintiffs – there is the even deeper constitutional issue that such a Goeterdaemmerung scenario would amount virtually to a de facto repeal of the 10th Amendment by dismantling federalism in all but name. So the case revolves around a question of intent on the part of the Government, and whether that intent is evident in the language of the ACA law.

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The core of the plaintiffs’ objection is succinctly described in a 5 March 2015 Salon article by Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University:

The case is in the Supreme Court because of a minor piece of clumsy drafting in the Affordable Care Act.  …  In the 2700 page law, there are two sentences that say that the subsidy is available for insurance bought “through an exchange established by the state.”  However, 36 states decided not to open exchanges.  The law provides that, when that happens, the federal government “shall” step in and establish and run “such” exchange, with the same authorities and obligations as a state-run exchange.  That most sensibly means that the federal government is to act as if it were the state, and that the federally run exchange is to be the functional equivalent of a state exchange. … The challengers have suggested that the destructive effects of their reading were just what Congress intended:  states were threatened with the loss of the credits if they did not create an exchange.  On investigation, this story turned out to be pure fiction … .

 Koppelman continues to describe two problems with the plaintiffs’ interpretation of ACA from the standpoint of federalism. [The first] one is that, if Congress is going to place conditions on federal funding or disrupt the federal/state balance, it must do so unambiguously.  …  Justice Kagan said that “there’s at least a presumption, as we interpret statutes, that Congress does not mean to impose heavy burdens and Draconian choices on States unless it says so awfully clearly.”  [Boldface added] Justices Scalia and Alito tried to suggest that the statute was unambiguous, but Kagan correctly observed that “this took a year and a half for anybody to even notice this language.” The second problem that has emerged in recent months is that Congress can’t commandeer states to administer federal programs – and if that is true, then it can’t elicit the same result with threats.  The Court thus held in 1997 that local officials can’t be required to conduct background checks on purchasers of handguns. The history of the second objection is interesting in its own right. Suffice to say that, in the Court’s judgment, the Federal government cannot simply dragoon the States into performing any Federal function the Federal government dictates. The principle of federalism implies that there can be no “coercive delegation” (my term) of responsibility, a point the Court also reiterated when it ruled ACA’s mandatory expansion of Medicaid unconstitutional.

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All that, however, is preamble. If this post took a firm grasp of the constitutional and case-law technicalities, the Tar Baby would swallow my text whole, never to emerge. Instead, and with the above background, I want to concentrate on the central presupposition on which the plaintiffs’ case in King is founded: the “hard-coded” suspicion that what is at stake in King are not comparatively tractable differences in constitutional interpretation, but, contrary to Justice Kagan’s assertion, the presumption – for which no evidence is cited – that Congress does intend to impose “heavy burdens and Draconian choices on States”. In other words, good will is not presumed in the case of King, but rather a fight to the death like … well … like the the death duels Aunty Entity sponsored in Thunderdome: constitutional law as 21st-century gladiatorial combat. I am old enough to remember a time when, disagreements being whatever and as acrimonious as they may, one could always count on a bedrock of presumptive good will regarding any point of legislation or constitutional interpretation. No more. That ended around the time of Prof. Bork’s abortive nomination to the Supreme Court. Since then, the presumption seems to be that the opposition – in this case, the President and those who support ACA – are not only mistaken, but (a) positively demonic and (b) driven by premeditatedly evil motives. The opposition – the pro-ACA people – is not only wrong in not only wrong in terms of policy and constitutional exegesis, but sinful.

If this language seems strong, reflect that the following: (1) according to the 9 February 2015 issue of Mother Jones, one of the King plaintiffs, Rose Luck, is sincerely convinced that Barack Obama is “the anti-Christ”, and (2) a brief filed by 22 States and DC in support of ACA, asserts that the customary protocol for interpreting laws passed by Congress and assessing their constitutionality, in the absence of hard evidence to the contrary, “the constitutional-doubt canon counsels against attributing such a coercive intention to Congress”. (Cf. also Knights Templar & Indemnity Co. v. Jarman.) One can only wonder whether, if the President is the “anti-Christ” in the minds of the King plaintiffs, the plaintiffs also believe that he colluded with the Beast from the Pit, the False Prophet, Beelzebub and Satan himself and their congressional minions in passing such legislation.

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So constitutional issues aside, the case the plaintiffs have brought against Obamacare is disturbingly typical of the kind of moral and legal reasoning to which increasing numbers of people on the conservative-religious right seem to have, not merely fallen prey, but in aid of which they have become willing, even eager, accomplices: working against their own best interests in opposition to what they regard as evil and in compliance with what they also regard as Divine dictates. At least a couple of the King plaintiffs believe they are not only working to overturn an unconstitutional piece of legislation, but also to frustrate the sinister plans of the “anti-Christ”. Furthermore, dig beneath the surface a little and you will find that King v. Burwell is yet another instance of what I call the What’s the Matter with Kansas? syndrome – that is, Jesus will somehow love you more if you go without health insurance, live in a packing crate, eat out of dumpsters and cooperate with the ruling plutocracy in doing so. I do not have enough space to even briefly synopsize it, but the Mother Jones piece lays out enough of the details of the socio-economic circumstances of the King plaintiffs, in all cases quite modest and in some cases borderline desperate, to make it plain that, apart from something like Obamacare, they cannot afford even minimal health insurance. Yet they file suit against the very program that could benefit them the most. And the crowning irony is that, if such folks applied the kind of literal exegesis to the text of ACA that they apply to the Bible, they would never have filed suit in the first place.

Such are the hazards of the 21st-century-style “neo-theocratic” mind: such an ideology devours those who serve it most fervently and who work against their own welfare – and that of others – with the most enthusiasm. “Curioser and curioser,” said Alice. “Tragic-er and tragic-er,” replied your Faithful Skeptic in Residence.

James R. Cowles

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