Today, the Supreme Court will hear arguments in King v. Burwell, a case with enormous consequences for both the millions of people receiving subsidies on health exchanges operated by the Federal Government, and for our system of government itself. An adverse ruling would be such a blatant abuse of judicial power and a brazen thumbing of the nose at democratic governance that I think we need to seriously grapple with a potential radical response: ignoring the Court and sparking a temporary Constitutional crisis.
By now you now the nature of the case. Mostly because of the convoluted process that led to the passage of the ACA (bribing moderate Democrats to pass a sloppy bill in the Senate and then being unable to go to conference with the House because Martha Coakley decided to insult local sports franchises), the statute contains what is clearly a drafting error. The section that discusses insurance subsidies says they are available for exchanges "established by the State." The IRS (correctly) interpreted that to include both state exchanges and federally-operated exchanges within states. Nobody really noticed this error until a bunch of nihilists at libertarian think tanks concocted this crackpot theory in a last ditch attempt to kill a law they hated. First, they surmised that there was a drafting error, but smugly argued that we must adhere to a literal reading of an isolated passage of a 2000 page law because textualism!
That "strict textualism" argument is fatally flawed for a number of reasons related to statutory interpretation. First, another section of the law states that HHS must submit reports on subsidies available on federal exchanges. Why would they be required to submit a report if subsidies weren't allowed? Second, the statute states that you qualify for a FEDERALLY run exchange if you "reside in the State that established the exchange." Under the convoluted reading of the King plaintiffs, this means that literally nobody could join a federal exchange at all, because the state itself has not "established an exchange." Understanding isolated language within the context of a broader statute, and avoiding absurd results are two key tenets of statutory interpretation. This is the sort of absurd result that should have led every single judge to throw this case in the shredder. Sadly, a District Judge and two Circuit Court judges allowed this farce to continue, and four Supreme Court Justices (presumably) voted to hear the case.
Not content with a flimsy textualism argument that can be best explained by a Seinfeld episode, the libertarian theorists of this case, Michael Cannon of the CATO Institute and Jonathan Adler of Case Western University came up with an even more absurd theory: this is what Congress intended all along! The theory goes that Congress deliberately wanted to withhold subsidies from federally-run exchanges so that States would be coerced into setting up their own exchanges. It's pretty clear, first of all, from the title of the law that the goal was to provide AFFORDABLE health insurance to ALL Americans. Why would Congress deliberately take an action that substantially undermines the stated purpose of the law? That is to say nothing of the myriads of contemporaneous evidence from those that wrote the law that this ad hoc theory is patently absurd.
Even beyond these laughable substantive arguments, it still amazes me that the case made it to the Court in the first place. In order to get a case into Federal court, a plaintiff must have standing, which Justice Scalia describes as the "what's in it for me" question. Not to rehash Con Law 101, but to establish standing, a plaintiff must have suffered an actual harm; that harm must be traceable to the action of the defendant (in this case, the IRS interpretation); and a favorable ruling would redress this hardship. On first glance, it seems ridiculous that anyone could claim an injury by NOT getting money to buy health insurance. But fear not, conservatives! The smug jerks who developed the theory for this case also came up with an innovative argument for standing. If certain people didn't receive subsides through federal exchanges, they would potentially qualify for a hardship exemption from the law's individual mandate, and thus would not have to purchase health insurance at all. Put aside, for a second, the question of whether the government giving you money to buy health insurance seriously counts as an "injury." The plaintiffs that these lawyers found may not even qualify for standing under this brilliant theory! A couple of them are veterans, and thus would appear to qualify for free socialized medicine through the VA. One of the plaintiffs is about to turn 65, so she will qualified for single payer government insurance by the time this case is decided. Two of the plaintiffs may even qualify for a hardship exemption even if they did get subsidies. Because they are smokers, their insurance premiums will be a high percentage of their income, which triggers the mandate exemption.
The lawyer in me wanted to carefully argue the patent absurdity of this case, and show how ridiculous it is that the Supreme Court is wasting its time on it this morning. But on a more basic level, who the hell would 5 Justices be to take away health care from 8 million people on such flimsy, nakedly partisan reasoning? This would be an epic violation of established judicial precedent, and a naked abuse of power. Such a ruling would require an equally drastic response: the Obama administration should temporarily ignore it and continue to issue subsidies.
I don't make this argument likely. I am fully aware of the risks of provoking a even a temporary Constitutional crisis. I'm also fully aware that a future GOP President would use this incident to justify not obeying some Court decision I agree with in the future. But the consequences of accepting this decision would be even more dire. From a policy standpoint, millions of people would not receive subsidies, and therefore won't be able to afford health insurance. As a result, the pool of insured individuals will be depleted, which will raise premiums for those already enrolled. This is what health policy wonks refer to as the "death spiral." From another perspective, this would be precedent for the Supreme Court to arbitrarily gut progressive legislation for pretty much any silly reason whatsoever. I'm sure the libertarian lawyers will start combing through the Social Security Act looking for errors as soon as this case is resolved.
So how would the Constitutional crisis play out? The Obama administration would announce that it will refuse to sign any piece of legislation unless Congress passes a law correcting the decision by the middle of July. If Congress does not act, the administration will continue to subsidize insurance on the federal exchanges for a couple of months in spite of the Supreme Court decision. Congress may try to begin impeachment proceedings, but Democrats in the Senate could prevent any sort of conviction. In the meantime, such a brazen act would be covered all over the national press, and would put the Supreme Court decision firmly into the public light. At least, the public would be aware of how radical the decision was and how it was such a violation of established democratic norms. The increased attention, at least in theory, may spur Congress to act to correct the statute. Even if it doesn't, it will be a profound illustration of a major flaw in our democratic system, which is important for the public to see.
Eventually, I don't think anyone wants to live in a society where the President does whatever he wants. I also want to win the 2016 Presidential Election. So I think after a couple of months of defiantly keeping this issue in the public eye, he can announce that he will now respect the Supreme Court's decision, in order to preserve their power elucidated in Marbury v. Madison to "determine what the law is." But he could give a speech questioning the entire premise of letting 5 unelected guys in robes arbitrarily upend the democratic process. Perhaps even a temporary crisis would begin to change the radical and profoundly undemocratic direction the Court has taken since Bush v. Gore was decided in 2000.
This action would be dramatic. This action would carry significant risks. But the stakes of 8 million people, and our democratic system of government itself, would make it worth it.