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Monday March 02, 2015

The Utter Smallness of King v. Burwell

If Keith Olbermann still did his schtick he might make Michael Greve today's “worst person in the world.” From Jeffrey Toobin's “Hard Cases,” about King v. Burwell, which is being argued before the U.S. Supreme Court on Wednesday:

Shortly after the A.C.A. passed, in 2010, a group of conservative lawyers met at a conference in Washington, D.C., sponsored by the American Enterprise Institute, and scoured the nine-hundred-page text of the law, looking for grist for possible lawsuits. Michael Greve, a board member of the Competitive Enterprise Institute, a libertarian outfit funded by, among others, the Koch brothers, said, of the law, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

I've heard nothing but arguments against King v. Burwell, and the arguments are getting more blistering. The Editorial Board at the New York Times, which doesn't exactly make waves, calls the lawsuit “a marvel of reverse-engineered legal absurdity” and its central claim “baloney.” Others, including in the Wall Street Journal, have argued that the plaintiffs don't even have legal standing in the matter—they haven't proven they were injured by the ACA—so the case should be dismissed on those grounds. An Indiana law professor suggests it would be “embarrassing” if the court didn't dismiss King v. Burwell

Toobin, in his piece, mostly argues against the smallness of the lawsuit: the four words in dispute (“established by the state”), and how, in better times, the confusion over the four words (if it's even confusion) would be dealt with. Which is to say: not this way. 

As for who would be harmed if the ACA is upended? Toobin doesn't exactly mince words:

If the Justices rule for the plaintiffs, the seven and a half million people on the federal exchange who receive tax subsidies will lose them immediately, which means that most of them will also lose their insurance, because they can no longer afford it. Insurance companies will then likely raise rates for the remaining policyholders, many of whom would drop their coverage, leading to even higher rates, and so on; this sequence is known as the A.C.A. death spiral. A remarkable coalition of state officials, insurance companies, hospitals, physicians, and nurses—many among them less than friendly to the Obama Administration—have filed briefs in the case warning of the consequences if the subsidies are withdrawn. A brief written by the deans of nineteen leading schools of public health states with bracing directness that, if the plaintiffs win this case, nearly ten thousand Americans will die unnecessary deaths each year.

Critics of the ACA have always railed on about Obama and his “death panels” but this may be another case of GOP projection.

Wednesday.

U.S. Supreme Court

Posted at 09:13 AM on Monday March 02, 2015 in category Law