The litigation campaign against the health insurance subsidies just scored a big victory when the D.C. Circuit Court of Appeals struck down the subsidies in the 36 states with federally-operated exchanges. (On the same day, another Court of Appeals panel, on the Fourth Circuit, unanimously rejected the claim.)
The legal argument against the subsidies is weak on the merits. But merits aside, the case raises important questions about the ethics of political warfare. When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point? The point here is to discredit Obamacare; the casualties are simply a means to that end.
Here’s what the case is about. The Affordable Care Act (ACA) offers health insurance subsidies for Americans who make up to 400 percent of the poverty line. That means a single person whose income is up to $45,960, or a family of four with an income up to $94,200. Two sentences in the 2,700-page law say that the subsidy is available for insurance bought “through an exchange established by the state.” However, 36 states have decided not to open exchanges. The law provides that, when that happens, the federal government can open exchanges in their place—and it has done that.
The current round of lawsuits claim that no subsidies can be given to anyone who lives in one of those states, because they would not be buying “through an exchange established by the state.”
If the argument is ultimately accepted by the Supreme Court, then about 4.5 million low- and middle-income workers in those states who are already receiving assistance from Obamacare will abruptly lose their benefits—not because they did anything wrong, but because this destruction furthers the political war. Their personal disasters are not unintended side effects of the litigation, but the very goal that the challengers are seeking.
This reading of the statute makes no sense. Courts don’t read provisions in isolation. Here are a couple of boring, standard rules of statutory interpretation: don’t take phrases out of context; try to make sense of the law as a whole. The ACA’s purpose was universal coverage. Other provisions declare that, when a state declines to establish an exchange, the federal government “shall” step in and establish and run “such” exchange, with the same authorities and obligations as a state-run exchange. That most sensibly means that the federal government is to act as if it were the state, and that the federally run exchange is to be the functional equivalent of a state exchange.
Outside the courts, the challengers have crowed that their argument, if accepted, would gut the law: People can’t get insurance if they can’t afford it, and their suit would make insurance unaffordable to millions. But ambiguous statutes are supposed to be read in ways that further, rather than thwart, their central purpose. Judge Harry Edwards, dissenting in the D.C. Circuit, observed that the majority’s interpretation “defies the will of Congress.”
That’s why the courts should reject these claims. Courts know how to make sense of drafting glitches. So does everyone: You und3rstand thsi sentense. In 1945, Arkansas passed an act that included this section: “All laws and parts of laws, and particularly Act 311 of the Acts of 1941 are hereby repealed.” That’s a lot clearer than the ambiguous ACA provision. The language unambiguously, albeit insanely, repeals every law in Arkansas. In his recent coauthored book, Reading Law, Justice Antonin Scalia observes that a literal reading of this language “threatened to wipe out all the statutory law in the state,” and concludes that the court properly refused to give it that effect. Some literal readings are too silly to be believed.
The challengers, understanding the weirdness of their reading, have claimed that this destructive result is just what Congress intended. There are provisions in the ACA, including big financial subsidies, to encourage states to set up their own exchanges. Jonathan Adler and Michael Cannon, the authors of the challenge, write that “limiting the availability of tax credits to insurance purchased in state-run Exchanges can be seen as just one more inducement for state cooperation: the [Patient Protection and Affordable Care Act] threatens states with the loss of tax credits for state residents if they do not create an Exchange.”
But there’s not a word of the legislative history that indicates that this is what Congress meant. A threat is meaningless unless it is communicated. This supposed threat was unheard of until the law’s opponents dreamed it up, years after the law was enacted. The D.C. Circuit’s endorsement of this argument is judicial lawmaking in its worst form, reading a law to do the opposite of what was intended.
But enough about the judges. Focus on the litigators—people who have opposed Obamacare from the beginning, and who are now trying to sabotage it in any way they can, even if there is no likelihood that it will produce a political result that they find more palatable. I’ve spoken to some of these lawyers, and they argue that, whatever the value of the subsidies for all the low-income people who depend on them for medical care, the rule of law demands that their reading of the statute be followed. This is an odd version of the rule of law: The legislative scheme has to be distorted on the basis of a clever argument that was invented out of whole cloth by these same lawyers. The chaos that would follow their victory probably would not be good for the Republican party. It would be a disaster for the judiciary, which is why the suit is likely to be ultimately rejected by the courts. Many people, right now, are getting diabetes and cancer treatment through the subsidies that this litigation aims to terminate. An ethical person would think about those consequences before bringing a case whose ultimate purpose is merely to harass one’s political adversaries.
Of course, a lawyer has an obligation to represent his client, whatever the results. But look at the client here. One of the named plaintiffs in the D.C. Circuit case is David Klemencic. He is a self-employed flooring retailer who expects to earn about $20,000 in 2014. He doesn’t want to buy health coverage. He told an interviewer that “he prefers a simpler time when doctors made house calls and the barter system was part of healthcare. He also notes that he has an emergency fund in place to pay for healthcare, and has always paid his own medical expenses.” His income is so low that he would be eligible for an “unaffordability exemption” under the ACA, which would excuse him from paying a tax penalty for going uninsured. But because he is eligible for a subsidy, the insurance isn’t unaffordable for him, even at his low-income level. So he has to buy subsidized health insurance, at a cost of about $1.70 a month, or $20 a year. (For reasons of principle, he in fact refuses the subsidy.) So he is asking the court to invalidate the subsidy.
Klemencic wants to change American society from one in which everyone in extreme need has a right to assistance to one in which suffering generates no obligations. He is weirdly idealistic. The life he aspires to is one in which he exhibits the virtue of heroic self-sufficiency in a world that is pitiless and cruel. Whatever the merits of that ideal, it is not a reason to make society pitiless and cruel.
Klemencic isn’t a criminal defendant. He doesn’t have a right to representation. The decision of these lawyers to seize on this particular case is an extreme example of a moral dysfunction that has become a pervasive part of this particular political fight. The issue isn’t the ethics of lawyering; it’s the ethics of political combat. Harm to noncombatants is sometimes an unintended collateral consequences, but there’s no excuse for deliberately bringing it about.
The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive. This was on display in the Supreme Court argument in March 2012. The government argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”
The Republicans increasingly are officially committed to the view that, if you get sick and you can’t pay for it, that’s your tough luck. They are, for the most part, decent people who don’t really mean that. They should stop saying it.
Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science, Northwestern University, is the author of The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013).