Nobel Prize winning economist and New York Times columnist Paul Krugman makes a serious charge against conservative judges who let political partisanship sway their court decisions. He calls them corrupt. And he warns that this would apply to Supreme Court justices if they destroy the Affordable Care Act over a badly worded sentence.
"So
let’s be clear about what’s happening here. Judges who support this
cruel absurdity aren’t stupid; they know what they’re doing. What they
are, instead, is corrupt, willing to pervert the law to serve political
masters. And what we’ll find out in the months ahead is how deep the
corruption goes."
That's very strong language for ones who used to be held in the highest respect. But I have to admit, I have thought the same thing in my dismay over some of their decisions.
Krugman is responding to the surprising fact that at least four of the nine Supreme Court justices voted to hear the appeal of the case that could gut the Affordable Care Act, rob millions of Americans of their newly obtained health insurance, and destroy President Obama's signature legislation and his legacy.
He describes the ACA as a "three-legged stool" -- no discrimination based on medical history, individual mandate, and subsidies based on income. If any one of those is removed, the whole program will become unworkable.
The case depends on the wording of one sentence that establishes the subsidies and links them to exchanges set up "by states." Now, when SCOTUS ruled on the constitutionality of the ACA, it struck out one part that more or less insured that each state would set up an exchange, lest they lose federal money for Medicaid programs already established. To keep the federal money they were already getting for Medicaid, they had to expand it to include a stipulated wider range.
So this wording made sense when it was anticipated that all -- or at least most -- states would set up exchanges. The federal exchange was put in only as a sort of back-up; it was not intended to be a major player in the program. This was not mentioned when it failed so miserably in those first few weeks of implementation, but it is none the less true. Besides all the real problems, it was trying to handle vastly larger numbers than it was designed to handle.
After SCOTUS removed that inducing penalty, however, about two-thirds of the states (mostly under Republican control) opted out of setting up an exchange, leaving residents of those states to use the exchange set up by the federal government. Not a big problem, because that exchange is now working well; millions have gotten insurance, and those who need it have gotten subsidies. But without the subsidies, everything would collapse.
Krugman explains:
"As
I said, everything else in the act makes it clear that this was not the
drafters’ intention, and in any case you can ask them directly, and
they’ll tell you that this was nothing but sloppy language. Furthermore,
the consequences if the suit were to prevail would be grotesque. States
like California that run their own exchanges would be unaffected. But
in places like New Jersey, where G.O.P. politicians refused to take a
role, premiums would soar, healthy individuals would drop out, and
health reform would go into a death spiral. . . .
"Once
upon a time, this lawsuit would have been literally laughed out of
court. Instead, however, it has actually been upheld in some lower
courts, on straight party-line votes — and the willingness of the
Supremes to hear it is a bad omen.
"So
let’s be clear about what’s happening here. Judges who support this
cruel absurdity aren’t stupid; they know what they’re doing. What they
are, instead, is corrupt, willing to pervert the law to serve political
masters. And what we’ll find out in the months ahead is how deep the
corruption goes."
Chief Justice John Roberts saved the ACA once before when he came up with the somewhat tortured reasoning that deemed the individual mandate to buy insurance a tax, which Congress has the power to levy. One would think that he would again cast the fifth vote on what would not require any such mental gymnastics -- but would simply recognize that the wording obviously does not reflect the lawmakers intent.
In that decision, Roberts saved the ACA by finding a way to uphold one leg of the three-legged stool. Will he do the same to save another leg, the subsidies?
The Chief Justice is said to care about the legacy of what will be referred to in history as "The Roberts Court." It's already tainted by decisions such as Citizens United and Hobby Lobby -- and tainted by the accusations of bias toward Republican positions and toward business interests. If they kill the Affordable Care Act, that tainted legacy will be carved in stone.
Ralph
