“This Congress, your honor?”
That snappy one-liner got a rare laugh from the packed crowd at the Supreme Court back in March.
Justice Antonin Scalia had asked Solicitor General Donald Verilli if there was any chance Congress could put aside politics and fix four words of ambiguous language in ObamaCare before the court had to rule in King v. Burwell.
The case is a challenge to federal subsidies in the healthcare law — and those four contested words are at its root. The case will be decided in the next few weeks.
The laughter was telling. No one trusts the current Congress to make a simple correction.
It is also true that few Americans trust the Supreme Court to make an impartial ruling. An AP-GFK poll conducted last month found 48 percent of Americans think the court’s ruling will not be based on an “objective interpretation of law.”
Only ten percent of Americans told the pollsters they are highly confident that the justices will stick to a constitutional review instead of offering personal opinions. The biggest surprise was that 60 percent of opponents to the law said they had no confidence in the conservative majority on the court to reach a fair, objective decision.
There is also the question of why the court agreed to hear a late, weak challenge to the law.
The whole case rests on what the four key words — “established by the state” — mean. The plaintiffs, partisans with an open antagonism toward the law, say it means subsidies can only be offered in states that have set up their own ObamaCare exchanges, not in places where the state has declined to do so and the federal government has stepped in instead.
The Obama administration and even Republicans involved in writing the law counter that the phrasing was a minor oversight in a bill of more than 900 pages.
The real intent, backers of the law say, was for subsidies to be offered regardless of which entity was administering the exchanges. They assert that this interpretation is clearly evident in the “text, structure and history” of the law.
The idea that the dispute is worthy of Supreme Court deliberation is puzzling. Doug Elmendorf, who ran the non-partisan Congressional Budget Office, was intimately involved in reviewing the law as it was being formulated to gauge its cost. The idea of subsidies being confined to state exchanges “did not arise” he told the New York Times.
Former Sen. Olympia Snowe (R-Maine), who was in office when the law was being debated and voted upon, told the same newspaper that the distinction at the heart of the court challenge “was never part of our conversation at any point. Why would we have wanted to deny people subsidies?”
Robert Pear, the Times reporter, wrote that interviews with “more than two dozen Democrats and Republicans,” found “none” who agreed that the law was intended to keep subsidies away from people in states that did not set up a health insurance exchange.
A Republican lawyer who worked for the Senate GOP described the whole situation as a mere “drafting error.”
But the court took the case.
In a functional federal government, the Congress would be focused on a legislative framework to keep healthcare costs down and to get insurance coverage to the maximum number of people. And the courts would keep that effort within constitutional limits.
Instead there is public laughter at the absurdity of endless repeal votes — and at the fact that the healthcare debate is once again in the hands of disingenuous politicians and a partisan high court.
Despite the circus, the current law is a success. It has enabled 11 million Americans to get health coverage. Last year, the Congressional Budget Office projected that it will have enrolled 26 million people by 2016.
But an estimated 13 million people in 37 states will be at risk of losing their health insurance if the court rules negatively in King v Burwell. If the law falls, insurance plans will be in chaos and premiums for coverage will jump in cost.
In a deep political irony, it is Republicans — not Democrats — who are scrambling to deal with the potential fallout if the court kills the law. Republican-dominated states that sought to spite the Obama administration by declining to set up exchanges will be most affected.
In that scenario, the turmoil would affect races for Senate seats, governors’ mansions and the White House itself in 2016.
For all its years of anger, the GOP has never come up with a viable alternative to ObamaCare. Even now, there is no proposal that has the support of Republican majorities in the House and Senate.
So the center of healthcare politics is now the high court even as people opposed to the law proclaim their lack of trust in that court.
Of course, much of that distrust is rooted in the 2012 case on the constitutionality of the law’s individual mandate for coverage. Many in the GOP expected the conservative court majority to kill it and were sorely disappointed when Chief Justice John Roberts became the decisive vote upholding it instead.
Now the court’s conservatives have another chance to deal a potentially fatal blow against the Affordable Care Act.
Justices Scalia, Clarence Thomas and Samuel Alito are expected to oppose the administration, as they did last time. The case will likely hinge on whether the Chief Justice and Justice Anthony Kennedy, frequently a swing vote, are willing to risk another break away from their conservative brethren.
Overall, however, nobody wins when the courts get caught up in hyper-partisan politics.
Juan Williams is an author and political analyst for Fox News Channel.