New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.
Let’s specify up front that Krugman isn’t entirely wrong that the substance of this case rests entirely on a technicality. As I noted in October when a federal court in Oklahoma ruled against the ACA on this issue, the anomaly by which the law granted subsidies only for state exchanges was not necessarily intended by those who drafted the law although there was some dispute about funding for the subsidies. But the Democratic majorities that crammed this legal monstrosity through both houses of Congress were not that interested in its content. As then House Speaker Nancy Pelosi famously said, the law had to be passed before anyone would know what was in it.
The idea that it could be scuttled by a drafting error strikes Krugman as a terrible injustice that would not be permitted if sensible people were staffing the judiciary. He likens the prospect of ObamaCare’s destruction on such a seemingly minor point to the discovery of a mistake made in the filing of the deed of his parent’s home which might have left his mother’s garden outside of their property. But there are two points that serve to render his complaint both hypocritical as well as insubstantial.
The first is that the ACA was judged to be constitutional on a technicality that was far more bogus than the one about state and federal exchange subsidies. In 2012, the Supreme Court ruled in favor of the constitutionality of the law on a narrow 5-4 vote. But the deciding fifth vote cast by Chief Justice Roberts was based on his belief that the entire thing could be construed as a tax and that this allowed the federal government to act in this manner. The other eight justices had divided evenly on the question that both the plaintiffs and those defending the government had thought was at issue: whether ObamaCare was an unconstitutional breach of the Commerce Clause that would have unlawfully forced citizens to engage in commerce. Roberts agreed with the four other conservative judges that the challenge to its constitutionality on this point was valid but concocted the tax argument in order to keep the high court out of an issue that he appears to believe should only be decided by Congress and the voters.
At the time, conservatives howled at the absurd nature of Roberts’s argument that allowed a blatantly unconstitutional piece of legislation to survive. In response, liberals merely crowed at their victory and reminded their opponents to respect the rule of law whether they liked the outcome or not.
Two years later, it appears the shoe is on the other foot and all of a sudden liberals like Krugman no longer think it’s right for laws to be narrowly decided in an arbitrary manner that hangs on legal technicalities or bizarre interpretations of the law. But there is more here at play than turnabout being fair play.
Krugman falsely argues that the law is working well, something that is given the lie by the fact that much of its substance has been delayed until next year so as to give Democrats a better chance in the midterms as well as its rollout. Contrary to the president’s false promises, Americans were not allowed to keep their insurance or their doctors, if they liked. The increases that many will suffer next year, as well as the potentially devastating impact on employment, once the individual mandate begins to be enforced also destroys his premise. But even if we accept that some will lose benefits they have been given under the law, that shouldn’t motivate the court to ignore the contradiction in the text.
At the heart of the current case is a question of what it means to pass a law. Laws are not merely amorphous notions but actual documents that must be drafted carefully lest some odd anomaly in their language allow governments to exploit the citizens or individuals to profit unfairly. If the text doesn’t actually matter, then the government may interpret them in any way it likes to the detriment of the rights of all Americans.
Seen in that light, Krugman’s railing at the “typo” and the “corruption” involved in this case that should—if Roberts doesn’t invent some even more absurd rationale to save ObamaCare again—destroy the president’s principal legislative achievement doesn’t seem so reasonable. At stake here is not just the future of health care or a president’s legacy, but also the rule of law.
Without the rule of law, there is no individual liberty or democracy. It is on that ground, if nothing else, that the Supreme Court should rule against the government. If it doesn’t, the corruption will not so much be liberal hypocrisy but their agenda that seeks to trash this basic principle of accountability.