Conservative judges’ decision imperils insurance coverage

07/23/2014 6:45 PM

07/23/2014 6:46 PM

From Bush v. Gore to the evisceration of the Voting Rights Act to the Hobby Lobby decision, it’s hard not to conclude that the broad, national project of conservatism is being worked as aggressively through the courts as through the traditional political process. Perhaps more so.

The latest judges to rip the veil off the encroachment of tea-party political evangelism into the judiciary sit on the D.C. Circuit Court of Appeals, which somehow found, in a three-judge ruling, that the Democratic Congress that created the Affordable Care Act intended its crucial subsidies for the purchase of health insurance to be available only in states that set up their own exchanges.

For the 34 states — including Florida — that for political and ideological reasons refused to participate in the exchanges and thus ceded the job to the federal government, their citizens are simply out of luck.

The two judges, appointed by the Bushes, one each by the father and the son, cloaked their ruling in Halbig v. Burwell in almost comic demurrals.

“We reach this conclusion, frankly, with reluctance,” wrote Judge Thomas Griffith, a Bush II appointee who authored the 2-1 majority opinion. “At least until states that wish to can set up exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal exchanges and for health-insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still.”

Yes, Judge Griffith. Your anguish has been duly noted.

Also noted: the fact that if the decision by Griffith and his fellow conservative judge, Raymond Randolph, who openly ranted about the healthcare law’s launch — weeks before it was announced that it had exceeded its enrollment goals — were to stand, the “significant consequences” would include five to seven million Americans losing their healthcare subsidies, and with it, their access to affordable healthcare.

In Florida, which has the fourth-highest rate of uninsured in the country, and where the Robert Wood Johnson Foundation estimates that 931,000 people will be receiving federal insurance subsidies by 2016 — second only the Texas, the “consequences” would be significant indeed.

Stripping millions of Americans of the subsidies would make their health insurance instantly unaffordable, saddling them with tax fines and crippling the law’s funding mechanism.

That, of course, is the goal of the ACA’s opponents. They, of course, have no answer for those individuals who would lose their coverage. Because stripping them of that coverage is the point.

It’s no coincidence that the 34 states refusing to participate in the exchanges, and the dozens refusing to expand Medicaid are mainly in the regions where most uninsured Americans live: the South and the Midwest. Pew Research has studied the phenomenon and found that six in 10 uninsured Americans live in states that refuse to run their own exchanges.

Those most fiercely opposed to the healthcare law do so without ever explaining what they think should happen to those people. If the two conservative members of the D.C. Circuit Court had their way, they wouldn’t have to. The insurance coverage would simply be stripped away, without any requirement to engage in politics.

The Obama administration plans, rightly, to appeal to the full D.C. circuit, where the political balance tilts decisively in the other direction. And on the same day these two judges attempted to thwart the clear intent of the previous Congress under the thin guise of respecting it, a second federal court ruled, 3-0, in the case of King v. Burwell, that Congress didn’t write a poison pill into its own bill.

Rather, it’s clear that the 111th Congress that hastily crafted the language in the offending provision, as they rushed to complete the law before the new Congress, with Scott Brown replacing the departed Ted Kennedy in the Senate, had enough Republicans in it to kill the legislation altogether. That haste should not doom the law.

In his dissent, D.C. circuit Judge Roger Gregory likened the error to a pizza order.

“If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino’s, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino’s with a ham and pepperoni pizza has still complied with a literal construction of my lunch order,” Judge Gregory wrote.

Well said. But God help America’s uninsured if the next pizza order goes to the equally fervent judicial activists on the Supreme Court.

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