Public Opinion Divorced from Scope of Government Power in King v. Burwell

The Supreme Court’s ruling in King v. Burwell, which will decide whether healthcare plans purchased in states that use the federal exchange are eligible for subsidies, is being characterized as a simple matter of statutory interpretation.

At issue is wording in the Affordable Care Act that clearly states tax credits apply to individuals enrolled in an exchange “established by the State.” However, a ruling against the Obama administration would mean a loss of an average $4,700 in subsidies per person in the thirty-four states that rely on the federal marketplace.

The government argues it is not the actual words of the statute that matter, but their intent, meaning the definition, and thus the tax breaks, should apply to federally purchased plans.

Opponents take a more literal approach, arguing the interpretation of the statute must be limited to the specific meaning of the words written in the legislation as passed.

The problem with the Supreme Court looking beyond textualism and to intent is twofold. One, it gives the Court legislative powers. While statutory interpretation is well within the purview of the justices, the Constitution must be the root of that interpretation.

Secondly, judicial decisions that give deference to the motives and intent of various governmental organs make the law a living creature. It becomes malleable. Substantively equitable rule of law relies on strict interpretation of statutes. The American ideal of justice is very much tied into this idea. The introduction of empathy into judicial rationale makes law a living entity with a survival instinct. History shows that these types of states end in despotism.

Besides, this kind of legal construct require taking the government at face value. Yet, the ACA was crafted to punish states that did not set up exchanges, the assumption being that once residents realized how much more their plans would cost without the subsidies, governors would bow under the furor of public outcry.

Nevermind how utterly insulting this is to the complexity of the democratic political process and the voting rationale of the average citizen, it clearly suggests a legislative emphasis on state exchanges..

But, one has to ask oneself, does any of this even matter? Sadly for those who believe in strict Constitutional interpretation and the rule of law, public opinion suggests not.

A recent Washington Post-ABC poll revealed that, while 54% of those surveyed oppose the ACA, 55% do not want the Court to rule against the government.

ACA poll

The wording of the question is in itself problematic, as the phrasing about low income families being “helped” by subsidies introduces bias. However, it is striking that the question does not take into account the issue of what courses of action the branches of the federal government are granted by the Constitution.

The emotionalism of budgeting is a powerful argument, much more so than the dry rationale of pundits concerned with maintaining the proper balance of lawful government power. It is often the focus of polling, which in turn is often a justification behind public policy pushes, which creates and perpetuates an ultimately hollow legislative process.

Obama administration officials are already threatening that if the Court does not rule in its favor, the American healthcare system will descend into “utter chaos.” While many state governments ignored the threats of such sophistry, whether the Court will do so remains to be seen.


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Katherine Revello

A recent graduate of the University of Maine, where she majored in journalism and political science, Katherine Revello is an aspiring political commentator. Her focuses include theory, the philosophy of money and populism. Currently, she is a graduate student at Villanova University. She is the founder of The Politics of Discretion, a blog dedicated to advancing her philosophy of discretionism. Follow her on Twitter: @MrsWynandPapers

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  1. Thank you, Katherine, for a concise layout of what is at stake with the ACA… It has been a jumbled and incoherent mess since its construction. I still haven’t decided which upsets me most…the ACA or all of those ‘hired hands’ that didn’t read it first!

    Many of those States that did set up programs are experiencing failures in coverage and cost. To deny non-participating States would be devastating financially to not only the State itself, but to the individuals already straining to pay their premiums .

    (I understand) that finally the House actually has a plan of 120 pages that addresses, in particular, the needs of those that were considered un-insurable through a ‘risk fund’. ??

    Again, thanks….and by all means…WELCOME to our part of Americana

    1. Jan, I had also heard that GOP leadership actually has several “plan B’s” ready to go. The details are light, but SCOTUS could rule in several different ways and supposedly republicans want to be able to respond with appropriate measures – not emergency ones. Only time will tell. Politicians (left or right) do tend to over-blow their own horns.

      1. Check out “The Daily Signal” June 5th Diana Stancy The New Congressional Plan to Repeal and Replace Obamacare. Bill is authored by Rep Phil Roe(D-Tn) and Austin Scott of Georgia. Presumably has backing of Republican Study Comm (170 members). It highlights most of the objections of OB care (as I know them) to include High risk, abortion and even a hint of liability laws etc………..Since Burrell could’t seem to offer a plan B in hearing from Dept of Health, this may impact (whatever) is coming down the SCOTUS pike….hope hope hope.

        I’ll not hold my breath on anything….I’ve done it so many times that I’m already every shade of blue on the spectrum.

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