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.

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.