The great Supreme Court cases turn on the majestic ambiguities embedded in the Constitution. It is not a simple thing to define and apply terms like “the freedom of speech,” or “equal protection of the laws,” much less explain how much process is “due.” Still, the Justices, in their best moments, have explicated these terms in ways that ennobled the lives of millions. This week, the Court will hear arguments in a momentous case, King v. Burwell, a challenge to a central feature of the Affordable Care Act. But, in contrast to other landmarks in Supreme Court history, the King case is notable mostly for the cynicism at its heart. Instead of grandeur, there is a smallness about this lawsuit in every way except in the stakes riding on its outcome.
Shortly after the A.C.A. passed, in 2010, a group of conservative lawyers met at a conference in Washington, D.C., sponsored by the American Enterprise Institute, and scoured the nine-hundred-page text of the law, looking for grist for possible lawsuits. Michael Greve, a board member of the Competitive Enterprise Institute, a libertarian outfit funded by, among others, the Koch brothers, said, of the law, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.” In time, lawyers hired by the C.E.I. discovered four words buried in Section 36B, which refers to the exchanges—now known as marketplaces—where people can buy health-insurance policies. The A.C.A. created federal tax subsidies for those earning less than a certain income to help pay for their premiums and other expenses, and, in describing who is eligible, Section 36B refers to exchanges “established by the State.” However, thirty-four states, most of them under Republican control, refused to create exchanges; for residents of such states, the law had established a federal exchange. But, according to the conjurings of the C.E.I. attorneys, the subsidies should be granted only to people who bought policies on the state exchanges, because of those four words in Section 36B. The lawyers recruited plaintiffs and filed a lawsuit; their goal is to revoke the subsidies provided to the roughly seven and a half million people who were left no choice by the states where they live but to buy on the federal exchange.
The claim borders on the frivolous. The plaintiffs can’t assert that the A.C.A. violates the Constitution, because the Justices narrowly upheld the validity of the law in 2012. Rather, the suit claims that the Obama Administration is violating the terms of its own law. But the A.C.A. never even suggests that customers on the federal exchange are ineligible for subsidies. In fact, there’s a provision that says that, if a state refuses to open an exchange, the federal government will “establish and operate such Exchange within the State.” The congressional debate over the A.C.A. 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.
During Obama’s remaining time in office, more challenges to his legacy, like the King case, will work their way through the courts. Even before Republicans took full control of Congress earlier this year, the legislative process had basically come to a halt; now, if the G.O.P. manages to pass laws in both houses, they will likely be met by Presidential vetoes. So Obama’s adversaries have taken their agenda to federal judges, who are nearly as politically polarized as the legislators in Congress. Last month, Republican officeholders in twenty-six states chose to bring a challenge to the President’s immigration plan before Judge Andrew S. Hanen, an outspoken conservative in Brownsville, Texas. On procedural rather than constitutional grounds, Hanen ordered a nationwide hold on the plan, which is a crucial element of the President’s program for his second term.
In a human sense as much as in a legal one, the stakes in King v. Burwell dwarf those of the immigration lawsuit and, indeed, most cases in the history of the Supreme Court. If the Justices rule for the plaintiffs, the seven and a half million people on the federal exchange who receive tax subsidies will lose them immediately, which means that most of them will also lose their insurance, because they can no longer afford it. Insurance companies will then likely raise rates for the remaining policyholders, many of whom would drop their coverage, leading to even higher rates, and so on; this sequence is known as the A.C.A. death spiral. A remarkable coalition of state officials, insurance companies, hospitals, physicians, and nurses—many among them less than friendly to the Obama Administration—have filed briefs in the case warning of the consequences if the subsidies are withdrawn. A brief written by the deans of nineteen leading schools of public health states with bracing directness that, if the plaintiffs win this case, nearly ten thousand Americans will die unnecessary deaths each year.
In a more civilized era—even the nineteen-nineties—Congress routinely passed technical fixes to major laws, in order to remove minor ambiguities, like the one that is arguably present in the A.C.A. For example, in 1999, with little controversy or notice, Congress made small changes in the Children’s Health Insurance Program, two years after its original passage. But that largeness of spirit has vanished from Congress, so it falls once again to the Supreme Court to determine the future of the A.C.A. The Justices all have well-developed views about the Constitution, and strong preferences about how our understanding of it should evolve. But their decision in the mean-spirited lawsuit that is King v. Burwell will reflect little on the interpretive schools to which they belong. The Court will have many more chances to define the Constitution for the ages. In this case, though, the Justices’ choice is a simple one: life or death. ♦
