Commentary Magazine


ObamaCare: Live by a Typo. Die By It.

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Let’s specify up front that Krugman isn’t entirely wrong that the substance of this case rests entirely on a technicality. As I noted in October when a federal court in Oklahoma ruled against the ACA on this issue, the anomaly by which the law granted subsidies only for state exchanges was not necessarily intended by those who drafted the law although there was some dispute about funding for the subsidies. But the Democratic majorities that crammed this legal monstrosity through both houses of Congress were not that interested in its content. As then House Speaker Nancy Pelosi famously said, the law had to be passed before anyone would know what was in it.

The idea that it could be scuttled by a drafting error strikes Krugman as a terrible injustice that would not be permitted if sensible people were staffing the judiciary. He likens the prospect of ObamaCare’s destruction on such a seemingly minor point to the discovery of a mistake made in the filing of the deed of his parent’s home which might have left his mother’s garden outside of their property. But there are two points that serve to render his complaint both hypocritical as well as insubstantial.

The first is that the ACA was judged to be constitutional on a technicality that was far more bogus than the one about state and federal exchange subsidies. In 2012, the Supreme Court ruled in favor of the constitutionality of the law on a narrow 5-4 vote. But the deciding fifth vote cast by Chief Justice Roberts was based on his belief that the entire thing could be construed as a tax and that this allowed the federal government to act in this manner. The other eight justices had divided evenly on the question that both the plaintiffs and those defending the government had thought was at issue: whether ObamaCare was an unconstitutional breach of the Commerce Clause that would have unlawfully forced citizens to engage in commerce. Roberts agreed with the four other conservative judges that the challenge to its constitutionality on this point was valid but concocted the tax argument in order to keep the high court out of an issue that he appears to believe should only be decided by Congress and the voters.

At the time, conservatives howled at the absurd nature of Roberts’s argument that allowed a blatantly unconstitutional piece of legislation to survive. In response, liberals merely crowed at their victory and reminded their opponents to respect the rule of law whether they liked the outcome or not.

Two years later, it appears the shoe is on the other foot and all of a sudden liberals like Krugman no longer think it’s right for laws to be narrowly decided in an arbitrary manner that hangs on legal technicalities or bizarre interpretations of the law. But there is more here at play than turnabout being fair play.

Krugman falsely argues that the law is working well, something that is given the lie by the fact that much of its substance has been delayed until next year so as to give Democrats a better chance in the midterms as well as its rollout. Contrary to the president’s false promises, Americans were not allowed to keep their insurance or their doctors, if they liked. The increases that many will suffer next year, as well as the potentially devastating impact on employment, once the individual mandate begins to be enforced also destroys his premise. But even if we accept that some will lose benefits they have been given under the law, that shouldn’t motivate the court to ignore the contradiction in the text.

At the heart of the current case is a question of what it means to pass a law. Laws are not merely amorphous notions but actual documents that must be drafted carefully lest some odd anomaly in their language allow governments to exploit the citizens or individuals to profit unfairly. If the text doesn’t actually matter, then the government may interpret them in any way it likes to the detriment of the rights of all Americans.

Seen in that light, Krugman’s railing at the “typo” and the “corruption” involved in this case that should—if Roberts doesn’t invent some even more absurd rationale to save ObamaCare again—destroy the president’s principal legislative achievement doesn’t seem so reasonable. At stake here is not just the future of health care or a president’s legacy, but also the rule of law.

Without the rule of law, there is no individual liberty or democracy. It is on that ground, if nothing else, that the Supreme Court should rule against the government. If it doesn’t, the corruption will not so much be liberal hypocrisy but their agenda that seeks to trash this basic principle of accountability.

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8 Responses to “ObamaCare: Live by a Typo. Die By It.”


    ” . . . the anomaly by which the law granted subsidies only for state exchanges was not intended by those who drafted the law.” —- Not sure what this quotation means. Key architect of the ACA, Jonathan Gruber, laid out the rationale on more than once occasion prior to the law’s passage for limiting subsidies to state exchanges. Gruber’s plain words–along with the very straightforward language of the provision in question– makes it clear that subsidies *were* intentionally limited to state exchanges. See, for example, one of the nice related postings on Powerline here:

  2. B WALTER says:

    Dr. Chessler is correct. Not a typo. Authors of the ACA clearly intended to coax states into establishing exchanges by streaming subsidies to states that participated and denying them to those who didn’t. There is a talk given by Jonathan Gruber to Noblis in 2012, two years after the act was signed. It is a long session. Relevant portions can be found at about the thirty-first minute.

    Krugman has more or less ceased his professional work to run interference for the Obama administration.

    • ITZIK BASMAN says:

      Messrs (Dr) Chessler and Walter are right. And that’s all there is to it. SCOTUS will rule for the plaintiffs and against the Administration I predict.

  3. ERIC SCHUMANN says:

    I don’t believe this statement is true: “… the anomaly by which the law granted subsidies only for state exchanges was not intended by those who drafted the law. ” From the horse’s mouth, here is Jonathan Gruber, an architect of Obamacare:

    “What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this. [emphasis added]“

  4. ITZIK BASMAN says:

    ….the anomaly by which the law granted only subsidies only for state exchanges was not intended by those who drafted the law…

    As noted in the preceding comments, this isn’t right. It was intended for the reasons made clear in those comments.

  5. DAVID PATTEN says:

    I am confused by what you think “typo” means. I think the administration is facing the consequence of a major strategic blunder right now. This is not an issue of some clerk inadvertently typing the wrong word somewhere in the law.


    Yes, the objection to the federal exchanges replacing the absent state exchanges, is a cavil. It is hard to see why that should void the entire law. I commented on J.S. Gordon’s post to that effect. And Tobin needs no one to tell him that one wrong, the technicality exploited by the Chief Justice, does not justify another.

    His other argument, that statutes must be drafted with precision and be accurately implemented, otherwise our whole legal system turns mushy and chaotic, is true and valid, yet still not good enough.

    The need for affordable medical care for all Americans is real. Obamacare trying to address this need is responsible law making; and it is Obama’s signature achievement. To overturn this benchmark statute with a legalistic shovel is wrong.

    If this King v. Burwell gambit works, remembered will be how the Republicans uprooted a valuable law on a technicality. For many it will be Republicans cold-bloodlessly cheating the nation of better health care. For others, Republicans will have spitefully denied the first black president a noble success. Few will remember the role of the Supreme Court.

    Much better to let it ride and let the ACA prove itself on its merits and demerits.

    Conservatives, who believe it won’t work, and I am one of them, should have the courage of their conviction. If we are right and the law fails, the Democrats will limp away from their disaster deeply injured. If it works, as Social Security did, that will be to the good of the nation, and the less Republican fuss the public remembers, the better.

    At this point, the Right should have two messages.

    Instead of complaining about the tricky substitution of federal for state exchanges, the alarm should sound over the substitution of govt subsidies for staunching America’s “unsustainably” climbing health bill.

    Making John Doe pay in taxes what he can’t afford to pay in premiums, merely spreads the pain but does not stop the nation’s financial hemorrhage (President Clinton’s phrase).

    Moreover, enrolling millions in Medicaid does not really give more people insurance. Those are mostly the same indigent people who have had Medicaid pay their hospital bills since 1966. The difference is that now they will have a Medicaid card before entering the hospital, rather than applying to Medicaid to pay the bill afterwards, which has been the case for decades.

    That skyrocketing cost spiral did not come over on the Mayflower. The average hospital stay charges had been under $200 a day before 1966, now the average 4 day hospitalization is over $25,000. Even with adjustments for inflation that increase is astronomic. Its cause is that since 1966 the medical industry needs no longer consider the patient’s ability to pay, the govt wallet has been open via Medicare and Medicaid. It only needs to circumvent the govt’s invariably porous cost restrictions.

    An effective ACA must field a device that forces medical providers to slim down their expenses and reduce their charges. A public given an incentive to go shopping for affordable health care, is the answer.

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