Ever resourceful Republicans, seeking yet again to overturn the Affordable Care Act and seeking to both cancel the newly acquired insurance of 7 million Americans and send the ACA into death spiral, went for a second time to the Supreme Court this week.

Unable with congressional majorities in both houses of Congress to upend the law that now ensures over 11 million Americans, the political Right in America has turned to the Republican-dominated Supreme Court in the hopes that friends there like Anthony Scalia, Clarence Thomas, Samuel Alito, and sometimes supporter Chief Justice John Roberts will prevail over swing vote Justice Kennedy to cancel Obamacare by undermining the subsidies to consumers.

The idea, imaginative if nothing else, is based upon four words in the oversized ACA law. The now infamous four words are: “established by the state.”

Those seeking to overturn the ACA argue that only those insurance exchanges established by individual states are qualified to receive subsides from the federal government for the insured. The exchanges operated by the federal government in 36 states that did not elect to operate insurance exchanges could not provide such cost support for the insurer because those were not “established by the state.”

The justices, in their questions to opposing council, seemed to largely follow political lines of attack, with Justices Scalia and Alito leading the conservative support for overturning the law, and by the four more liberal justices to support the existing intent of the ACA to provide subsides to all qualified by the law, including those in states where the individual states elected not to operate an insurance exchange.

Justice Kennedy raised an issue not provided in the briefs submitted to the court. Kennedy noted that in the earlier SC ruling that accepted the constitutionality of the ACA, the ruling argued that states could not be forced to provide exchanges because to exert such force with financial penalties would constitute coercion by the federal government. Kennedy then asked if, should the subsidies be ended in 36 states, would it also be coercion to deny subsidies to those states, pressuring those states to create state run exchanges?

Chief Justice Roberts was not inclined to give away his position on the case as he asked few questions and made few comments. Justice Thomas, as usual, contemplated in silence instead of participating in the questioning.

At end the of the day the Supreme Court is being asked to undermine the ACA on the basis of four words not intended to define the thousands of pages of structure that became the law of the land. This truth is known by all, as is the obvious political intent not to seek constitutional clarity, but to seek political action to destroy Obamacare; political action in a court previously more than willing to serve the bequests of the political Right on occasion.

But in this instance, should the court, solely on the basis of four words, end, effectively undermine and de-construct the ACA, millions and millions of Americans would be harmed by loss of insurance, increased premiums and a potential end to the many related benefits of Obamacare. Benefits that include the end of pre-existing conditions to deny insurance, ceilings on coverage that bankrupted some, and many other advantages possible only through the many newly insured balancing the costs of coverage,

Justice Scalia suggested that the potential harm and turmoil could be dealt with by Congress passing laws to address the newly created problems should the court so rule. The government’s top lawyer Donald Verrilli responded “This Congress, your Honor?”

The courtroom broke out in laughter.

 

Jim Crawford is a retired educator and political enthusiast living here in the Tri-State.