Kevin Brennan Writes About What It's Like

Will the Supreme Court see a typo or an opportunity?

Fun Medical MGD©

Just word of grammarly caution. By now you’ve probably become aware that the Affordable Care Act, or Obamacare, is in jeopardy because the Supreme Court has decided to take up the case of King v. Burwell.

In this case, the plaintiffs argue that the law states that health insurance subsidies can be provided only to citizens who obtain their insurance via state exchanges — not the federal exchange put in place for people whose states declined to set up their own. Sure, a lot of diabolical politics is behind much of this, but here’s the thing: It appears that the language that the plaintiffs are latching onto to justify their position is a mistake. Something of a “typo,” but more precisely a case of sloppy writing.

Yes, it would seem that words have meaning.

I suspect that diabolical politics is going to defeat language this time, so if I know this Supreme Court, get ready to lose your subsidies — those of you in states that defaulted to the federal exchange — and pay a lot more for health insurance.

This will impact self-employed people like writers more than people who get their insurance through their employers. And I see quite a pungent irony in that…


7 comments on “Will the Supreme Court see a typo or an opportunity?

  1. kingmidget
    November 11, 2014

    I completely agree with your view on this. But here’s my problem … all of the editorials and articles and blogs I’ve read on this that insist that the interpretation we all fear is entirely inconsistent with the rest of the Affordable Care Act. That it’s clear from the language contained in the rest of the act that the intent was that the subsidies would be in place in all 50 states. That makes sense. It’s logical, but … not one of the people who has written one of those editorials or articles has pointed to any other language in the Affordable Care Act that supports their position.

    • Kevin Brennan
      November 11, 2014

      Which only amplifies the sloppiness. And that makes you wonder whether sloppiness is actually a feature, not a bug in these things.

      • kingmidget
        November 11, 2014

        I work in State government and am regularly involved with the legislative process. It’s a mess. It wasn’t intentional. It was sloppy. However, with a piece of legislation as large and complex as the ACA, it’s no surprise there were some mistakes. Just wish they had been in a less critical place. Also, if politicians were acting reasonably there would be clean-up legislation to fix this. No way that’s going to happen with the Reps in control.

      • Kevin Brennan
        November 11, 2014

        Yes, and I think that’s exactly what the Court will do: send it back to Congress for revision, and there it will die.

      • kingmidget
        November 11, 2014

        I agree that is the most likely outcome. The other problem with the pro-ACA argument on this is that it rests on the intent of Congress. Courts only look to intent if the statute is vague or unclear. Unfortunately, although inaccurately written, the provision is a model of clarity in some respects.

        This is one of those times when I struggle with what I want versus what I know about how courts interpret legislation. Whether I like it or not, the Supreme Court would be well within the bounds of reasonableness to conclude the subsidies only apply to state exchanges regardless of what the outcome of that decision might be.

  2. Pamela Beckford
    November 11, 2014

    As an employed person (with a small nonprofit) and needing to provide my own health insurance, I had high hopes for the ACA. I was disappointed that we didn’t go far enough and move to a single payer system, but I’m tired of politicians wasting time to continually do everything they can to take away any hope someone like me with a preexisting condition has of ever working for more than to pay my health insurance (it is $17,000 annually by the way). I never hear of any positive solutions being brought forth, just why it needs to go away. And I live in Indiana where our governor is hellbent on destroying the middle class

    • Kevin Brennan
      November 11, 2014

      You’re so right about the misplaced priorities. I remember when the ACA passed, thinking, “They’ve built a Rube Goldberg machine to do what should be a simple job.”

      I’m not far behind you on the cost front, and I just learned our premiums are getting jacked up again in January. All we need now is for the Court to undo what little has been done and go back to square one.

      Black-robed devils! 👹

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This entry was posted on November 11, 2014 by in Writing and tagged , , .
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