Wednesday will have the opening arguments in the most anticipated Supreme Court case of the year, King v. Burwell. The case asks a key question, which is whether or not the IRS went too far and exceeded their power and authority when it enacted a regulation to authorize the distribution of millions of dollars in tax credits through health care exchanges that were set up by the Federal Government? The ruling may indeed be determined on how the court interprets five words, ” Exchange established by the State.”

After the law passed a major problem ensued when only 16 states set up health care exchanges while the remaining states did not. As a fall back position the Federal government set up exchanges for the remaining states.

If the court holds that only Congress can set up the exchanges the existing ACA will be gutted. Seven of the eleven million people who have signed up for what some call Obamacare, would not be able to afford the insurance that they now have because they depend on their insurance being subsidized.

The government’s attorney the Solicitor General will argue that the five words were meant to be all inclusive whereby the tax credits would not just be for the states that set up the state run health care exchanges.

At first the GOP, was celebrating when the news came out that the Supreme Court will hear the case. Clearly there is a good chance that this court will hold against the government. But now there are rumblings from a few very conservative Senators that maybe this is a victory that they don’t want. After all, 7 to 8 million currently insured people will lose their insurance coverage. The news will be full of the heartbreaking stories of people with cancer being unable to continue with their chemotherapy. What we are experiencing is buyers remorse.

Back during the 1960’s Congress would have just fixed the error, whether the five words are words of art or a typo it doesn’t matter. Congress would have fixed it as they fixed several problems that Medicare had when it was first launched.

But there is no way that this Congress can agree on anything other than they disagree on everything.

This is the most political court perhaps in history as evidenced by the 2000 decision on Bush V. Gore. Back when I went to law school, we learned in the first week of law school that the court does not like to get involved in political decisions. I was shocked when the Supreme Court did not send the case back to the Florida Supreme Court. Now we have a dispute that pretty much lies in the political arena that could easily be resolved if partisanship was not so excessive and the members of Congress were really interested in keeping the millions of people who now have insurance happy.

Politics was not so obvious back in the 1950’s and 60’s when the court had such respected conservatives as Felix Frankfurter and Potter Stewart. Their decisions were clearly based more upon precedent than now. They made well reasoned decisions and often the minority conservative justices had well thought out writings on the cases that one had a hard time disagreeing with. Now we have the court or I should say 5 justices of the court heavily influenced by the Federalist Society, and it is quite possible that the court may gut a major piece of legislation.

We are talking about a dispute based upon 5 words when the intent of the act is not in dispute. The court may take those words literally and bring a political victory to the Republicans that they could not win in Congress. Their victory could be temporary, due to the fact that you would have 8 million really unhappy people. The legislation has been a success in that it has brought health care costs down and it has helped to insure millions of Americans.

The American people will anxiously wait for the Supreme Court’s decision. As usual the court decision will lie in the hands of Justice Kennedy and the Chief Justice Roberts. Will Roberts make up for his unpopular decision on the prior ACA decision? Will Roberts once again have the history and reputation of the court in mind when he makes his decision on how he will vote?


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