The Supreme Court and language

Posted 8/21/12

Arguments about whether the Affordable Care Act (ACA), or Obamacare as it has affectionately or derisively come to be known (depending on which side of the argument one backs) were presented before …

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The Supreme Court and language

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Arguments about whether the Affordable Care Act (ACA), or Obamacare as it has affectionately or derisively come to be known (depending on which side of the argument one backs) were presented before the Supreme Court of the United States (SCOTUS) on March 4.

The ACA provided that states could create exchanges through which residents could purchase health insurance policies, and residents with low or moderate incomes would receive federal subsidies to help pay for them. If a state chose not to set up an exchange—and 26 of them chose not to—the residents could purchase insurance through a federal exchange and still receive subsidies.

New York set up its own registry, and it has been running fairly smoothly for the past two years. Pennsylvania did not set up a registry, and for a year refused to accept subsidies from the federal government. That decision was likely at least one factor in Gov. Tom Corbett’s defeat at the polls in November of 2014.

At the SCOTUS hearing, the central question was whether the ACA allows subsidies to be allocated through the federal exchanges. Michael Carvin, one of the lawyers arguing that the ACA should be stuck down, told the justices, “The only provision in the act that either authorizes or limits subsidies says, in plain English, that the subsidies are only available through an exchange ‘established by the state.’” His argument is that because of the word “state,” the federal government can’t provide subsidies to residents who use the federal exchanges.

But is the English really so plain? Since the days of the city-states of Athens and Sparta, “the state” has meant the highest government in the land, and oftentimes still does.

The Merriam Webster dictionary has about 20 definitions of “state”; one of them is, “a politically organized body of people usually occupying a definite territory; especially one that is sovereign.” The dictionary says two of the synonyms for state are “country” and “nation.”

On dictionary.com “state” is similarly defined. Again, among multiple definitions, state is defined as “politically unified people occupying a definite territory; nation,” and also, “of or relating to the central civil government or authority.”

One definition among many in the Oxford dictionary defines a state as, “A nation or territory considered as an organized political community under one government.”

Those definitions, along with the fact that the lawmakers who created the act have said that the intent of the legislation was that people who applied for insurance through either state or federal exchanges should be able to receive subsidies if they qualify, should have put an end to the matter.

The SCOTUS majority moved to uphold Obamacare in June of 2012. If, this time, one of the justices has changed his or her mind, and the vote becomes five to four in favor of striking down the subsidies, the consequences will be severe. Almost everyone agrees that up to eight million people will lose their healthcare because they won’t be able to afford the payments, and the whole system will come crashing down.

Justice Antonin Scalia said he believed the current congress would act to prevent that disaster by quickly adopting a legislative fix. While some Republican lawmakers have said they would come up with a fix, it’s not easy to see that actually happening when members of the House have voted more than 50 times to repeal, weaken, slow down or alter Obamacare since 2010.

The fact of the matter is that SCOTUS very often has a unique way of interpreting language to suit the goal of the majority. A majority of previous justices determined that money is speech, even though the average seventh grade student could explain the difference between the two.

Previous justices have determined that corporations are people, even though just about every adult in the nation understands the difference between a person and a corporation.

Whichever way the justices vote, many people in this country will not see it as a mere interpretation of the law; instead it will be seen for what it is: a political and philosophical statement and decision.

If the majority acts to strike down Obamacare, people opposed to it will see that as confirmation that the federal government has no right to compel residents to buy health insurance, and it will also be seen as confirmation that the majority of low- and moderate-income people who have signed up for Obamacare have no right to government subsidies to help pay for healthcare. If the majority votes to uphold Obamacare, the opposite will be true.

We think all people, including those with low and moderate incomes, have a right to affordable healthcare, and Obamacare has helped to provide that to 10 million residents, most of whom could not otherwise afford it.

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