Thoughts on King v Burwell

6/28/2015 01:16:00 PM
If you haven't heard, Burwell won. A loss would have meant almost 9 million Americans would have lost their health insurance and tens of millions more would have seen at least a 47 percent increase in their insurance costs. 6 justices on the Supreme Court decided to avoid that outcome.

Some conservatives have tried to argue that the decision was one of judicial overreach, of an unelected court rewriting legislation. I think the opposite is true. The interpretation that the plaintiffs in King sought to impose was never more than a technicality based on a mere four ambiguous words--total--in an almost thousand-page bill, an interpretation that, if imposed by the court, would have fundamentally altered the whole law, imposing a particularly draconian regulation that Congress never explicitly put there.

The court's ruling on Thursday morning was a bit surprising and weird. To be sure, I expected a ruling against the plaintiffs, but it was surprising because like most court watchers, I expected it to be decided under a Chevron doctrine, or perhaps constitutional avoidance, but not a ruling on the plain text. The decision was weird because the court held both that the four words in question--"established by the State"--were ambiguous but that the context nevertheless compels us to interpret them to include both state-run and federally-run exchanges.

The way I interpret this is the court is saying that Congress cannot hide mountains in molehills. The technicality that the architects of the plaintiff's case in King sought to exploit was not merely an unintended effect of a law--the court does not protect Congress from the unintended consequences of legislation--but rather a whole new regulatory regime supposedly being promulgated in the space of just 4 words, that would have fundamentally altered the way in which the legislation as a whole works. The court ruled that such a regulation requires more than 4 words to create. The court ruled that if Congress wants a regime in which only states that run their own exchanges are eligible for subsidies, that fact must be explicitly articulated in the bill, not merely implied through the use of tricky language in one four-word mention in the bill. The court said that neither the IRS nor the courts have the power to creatively exploit typos and technicalities after the fact to fundamentally alter an act of Congress.

So, as an advocate for public health, I guess I'm glad that nearly 9 million Americans won't be losing health insurance--though I'm not sure that maintaining the status quo counts as a "win." But frankly, I'm much more pleased that we now have a precedent like this on the books. To see why, just think about one of the common--but most outrageous--objections that conservatives raised against the ACA in the first place: death panels.

The conservative paranoia over "death panels" comes from this passage from Section 1233 of HR 3200 that was briefly inserted into the ACA but ultimately deleted from the final bill for political reasons:
"For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment"
Basically, the bill would have authorized Medicare beneficiaries to see a doctor once every 5 years--if they want--to make plans for end-of-life care, and would have included doctor's willingness to offer these consultations and adherence to the patient's preferences expressed in them as part of their quality reporting criteria. There is absolutely nothing in the bill that said that government bureaucrats--a "death panel"--would decide who gets care and who doesn't. But critics charged that the language of the bill could be read in a way that authorized HHS to do exactly that.

Thursday's court ruling said otherwise. Applying the precedent from King, Congress cannot secretly promulgate such a massive regulatory change through language this vague. Shouldn't we all breath a sigh of relief knowing that Michael Cannon can never sue the government to force them to kill your grandmother?