Magazine article The New Yorker

Hard Cases

Magazine article The New Yorker

Hard Cases

Article excerpt

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. …

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