Everyone is talking about Linda Greenhouse’s column, in which she admits that the conservative justices on the Supreme Court have gone insane. If you don’t have the patience to read it, let me summarize it:
The Supreme Court is hearing a new challenge to Obamacare. It’s not that the case is complicated – it’s that explaining it is boring. But, basically, here it is. Obamacare says that people who make less than others get money back from the IRS to pay for some of the costs of health insurance. Obamacare also says that each state has to set up its own healthcare market, but if they don’t, the feds step in and set it up for them. The problem is that one sentence in the statute says that people get payments from the IRS for insurance they got on their State-run exchanges. So, some conservative activists claim that there are no subsidies for Federal-run exchanges. This single reference contradicts the entire rest of the statute. The case is not really ripe for the Supreme Court – there is no split among the circuit appellate courts. There also should be no controversy – the big rule says that if you can’t tell what something means, defer to the administrative agency – here, the IRS – that is empowered to administer the law. The IRS is not confused about the meaning of the statute – the IRS says that all exchanges no matter who set them up entitle its customers to subsidies if their incomes qualify them. More importantly, most good case law refuses to punish participants for scriveners’ errors. Instead, wise judges seek to identify the intentions of the people who made the law or the contract, by looking at history or other text in the document. Here, a rabidly radical court could be taking another step towards upending the balance of power, disregarding its own precedence and destroying its own credibility all to score political points: precisely what the court is not supposed to do. Hopefully, Roberts and Kennedy’s thinking brains will show up to see this case for what it is: easily dispensable using tried and true legal principles.