Oh the suspense! Oh the drama! Oh the dazzling cut and thrust of scholarly debate! Where would the media be without such great theater? Yes, I’m talking about the Obamacare case being pondered by the highest court in the US.
But you won’t hear anyone on the bus talking about it. The man and woman “on the street” know better. They know instinctively that the court isn’t going to rock the boat at this stage.
It doesn’t really matter that Congress screwed up when they finally brought forth the thousand-page health care law, with all the twists and turns that “compromise” made inevitable. With the Republicans in ferocious opposition and the Blue Dog Democrats nipping at his heels, President Obama couldn’t get a single-payer health care law like Canada’s, so he got what he could.
Any child can read what the law says about subsidies to families that can’t afford to pay their premiums. It says federal subsidies are available in states that set up health care exchanges. I don’t see how you can read that to say they are also available in the 36 states that opted out of the deal.
But the justices know they have to find a subtle shade of meaning to avert the catastrophy that literal interpretation of the law would precipitate.
I know Justices Antonin Scalia and Samuel Alito will vote to overturn the law. And Justice Clarence Thomas, like the department store mannequin that he is, will go along with whatever they say. They will do that, however, secure in the knowledge that their vote will do no harm this time.
The case will be decided in favor of the status quo.
It’s a given that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will find cause to uphold the law. They’re Democratic appointments, after all.
And Justice Anthony Kennedy will probably vote their way. He’s known as the “swing” vote on the court. And he has been known to swing to the left.
Furthermore, I am willing to bet the farm that Chief Justice John Roberts will find some legal justification for the subsidies that 8 million Americans now receive under Obamacare – despite the stupid typo Congress left in the law.
With a presidential election coming up next year, the Republican stalwart is not going to infuriate those 8 million voters.
In yesterday’s New Yorker, Jeffrey Toobin, CNN’s senior legal analyst, speculates that although the chief justice has been silent so far throughout the hearing, he could have showed his hand when he suggested a precedent known as the “Chevron deference” might give the next President power to reverse the law.
According to Toobin:
A decision in favor of Obama here could be a statement that a new President could undo the current President’s interpretation of Obamacare as soon as he (or she) took office in 2017. In other words, the future of Obamacare should be up to the voters, not the justices.
That could well be the escape hatch John Roberts needs. But if that doesn’t work, I am sure he will find some other dodge – as he did when the individual mandate was challenged. (He christened it a “tax,” remember?)
He isn’t about to win this battle for his party at the expense of losing the war next November.