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Why Liberals Are So Furious About Today's Supreme Court Obamacare Case

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Almost three months ago, in the op-ed pages of USA Today, Randy Barnett, a libertarian law professor at Georgetown University, pleaded with Congressional Republicans to get their act together, and devise an alternative to the Affordable Care Act. The political environment in Washington hadn’t changed—Republicans were no closer to health policy consensus than they had been for any of the past five years, and President Obama no more willing to roll back his signature accomplishment. But Barnett had other objectives in mind. His goal was to “make a favorable ruling more likely” in King v. Burwell—the case before the Supreme Court Wednesday morning, which threatens to void ACA subsidies in 34 states.

“The legislative wheels must be visibly in motion by the time of oral arguments in March,” Barnett wrote.

And this week Congressional Republicans complied. Or rather they created the illusion of compliance. In synchronous op-eds that ironically reveal points of conflict as well as consensus, leading Senate and House Republicans claimed they’d step in to contain the damage if the Court rules for the plaintiffs. These editorials hint at a desire to let states waive out of the ACA into a much less regulated system. But both are silent on every crucial detail, and on the basic political fact that no such plan is likely to pass either chamber, nor win Obama’s approval. As if to underscore the pointlessness of the exercise, the House chairmen accented their column with six words that spell doom for any substantial undertaking: “Republicans have formed a working group.”

But for the purposes of communicating with the Supreme Court, they checked the box. The “legislative wheels” are “visibly in motion,” freeing Barnett to write a separate piece for the Washington Post condemning the law’s supporters for nudging the Court in the opposite direction.

As exercises in bad faith go, Barnett’s double standard is trivial, perhaps even unintentional. By contrast, the crucial elements of the King case—the political theatrics, the enlistment of plaintiffs, the historical revisions, the legal arguments themselves—are all breathtaking in their duplicity. The current challenge offends the sensibilities of its detractors more than the constitutional challenge that nearly voided the law three years ago, because the law’s opponents have enlisted such indefensible tactics. And the horrible thing about it is, they might very well succeed.

Because the ACA bases the value of insurance subsidies on the cost of insurance purchased through an “exchange established by the state” its challengers claim the law doesn’t authorize subsidies for insurance purchased on federal exchanges. Though a more contextual reading of the law—as well as history, and common sense—belies this construction, a narrow debate over how to best interpret the statute wouldn’t be nearly as frustrating to the law's supporters.

But to win in court, conservatives couldn’t leave it at that. Because courts generally defer to the government’s interpretations of ambiguous statutes, the challengers needed to argue not only that they had the better read, but that theirs was the only reasonable interpretation of the law. To bolster that argument, they fabricated an ahistorical account of the law’s creation, in which Congress deliberately withheld subsidies from non-capitulating states. These two instrumental decisions explain the left’s astonishment at the fact that the challenge might succeed, and why, if it does, the left’s outrage will be irrepressible.

There’s an apparent contradiction between conservatives insisting they’ve arrived at the only plausible construction of such a vast statute, and their typical appeals to judicial humility. To claim that most of your peers don’t merely have the worse of two arguments, but are actually being unreasonable, is to assert, at best, that your opponents are caught in a spell of motivated reasoning, while you are not.

That makes it all the more dissonant when King backers occasionally congratulate the law’s supporters for presenting their arguments well. When Jonathan Adler, a King architect, praises Nicholas Bagley, a King opponent, as “among the most thoughtful commentators on legal issues arising under the PPACA,” he’s being charitable to someone who might as well be arguing that the moon is made of cheese.

Of course, if the ACA were truly unambiguous in the way the challengers claim, it wouldn’t have been so widely misinterpreted, including by Republicans, for so many years. Six federal judges wouldn’t have agreed with the government that Obamacare provides for subsidies on all exchanges. The law might fail, but only because its text would be plainly incompatible with its putative purpose to all readers.

If that were the case, the challengers probably wouldn’t have needed to ask the Supreme Court to hand them what they’ve been unable to attain in the elected branches. Their aims would’ve been resolved through the political process. That King is before the Court today, while the law functions essentially as intended, tells you everything you need to know about its credibility.

And yet the case might carry the day. It's troubling that any mode of statutory interpretation could yield a result for the challengers—one so at odds with Congress' manifest and historically documented purpose. That isn’t to say judges should try, like method actors, to channel distant legislators whose laws seem aburd. There's an elegant simplicity to the idea that judges should look first and often only to a statute's words to determine meaning. The logic of textualism appeals to lay people and professionals because it sidesteps the epistemological problems you encounter by standing in for people who have been out of office for years, or dead for decades, or who were laboring to form a more perfect union.

The good news is, the words of the ACA support the law as implemented.

But it also happens that the "debate" over Obamacare subsidies sidesteps those epistemological problems, because its Founders are still here. You have to be delusional or dishonest to claim that Congress imposed a huge condition on the subsidies, or that we can't know what Congress was trying to accomplish. Yet a swing justice could decide that "by the State" does not equate to "by the federal government on behalf of the State”—to ignore the fuller context—and thus that the law doesn't do what Congress wanted when Congress wrote it. That would be a huge coup for diction scolds and people who get angry at the thought of poor folks going to the doctor. It would also reflect a conscious decision to ignore the clarity of the law’s purpose. If that’s the thin reed on which the Supreme Court interprets Obamacare, in defiance of the democratic process that brought it into existence, something will have gone very, very wrong.

This article has been updated.