The Supreme Court is going to consider the question of whether, under the language of the Affordable Care Act, subsidies are permitted for individuals who purchase insurance through an insurance exchange operated by the federal government. The lower-court suit is little more than a proxy for gutting Obamacare all together, since the "affordability" part of the ACA is largely based on those subsidies, and their loss would put the entire law in danger of total failure. The suit is only possible in the first instance because of sloppy legislative drafting, which in turn was made possible by the rush to get the ACA from Congress to the White House. Fixing the drafting would be easy, but would now require the approval of a Republican Congress. You can figure out the rest.
On the other hand, is it truly that easy that easy for them? You know most Democrats tend to be worry-warts, and even the possibility of a mortal blow to President Obama's signature accomplishment has them on red alert. And, after last month's election, it's undoubtedly a lot easier for progressives to give in to despair. But just because it's easier doesn't mean that it's true. There are two powerful reasons to believe that Obamacare is not in danger at all. And, even if those reasons should not help to carry the day for the ACA in the Supreme Court, there may actually be an opportunity for Democrats in the wake of defeat--if they are strong enough to seize it.
The first reason rests in the strength, or lack thereof, in the arguments made by the plaintiffs in the case that the Court will consider. As a matter of law, deference to congressional intent by the courts is quite extreme. If the government gives any reasonable interpretation of a statute in implementing it, the government wins if that implementation is challenged. In effect, the plaintiffs in this case would have to prove that it is unreasonable to assume that subsidized coverage was the intention of the Affordable Care Act. Even granting that this Court has an appetite for challenging settled law, it seems doubtful that they would go as far as the plaintiffs want them to go in this case. It would open up the proverbial floodgates to challenges to every drafting error made by every Congress--including many made by Republican Congresses. The game simply wouldn't be worth the candle, and the conservative majority on the Court knows it.
And when the conservative majority on the Court isn't moved by settled law, it is surely moved by the power of the corporate interests it serves through that the Citizens United decision, as well as others. And, whether conservatives like it or not, the simple fact of the matter is that Obamacare has been good for American corporations, especially health insurance corporations. John Roberts and his cronies aren't going to want to upset that applecart.
And what if they do? What should Democrats do then? Spend all of their time crying in their beer? Or do the one thing any political party should do in defeat--go on fighting for what it believes is right? I don't know about you, but I think the answer is obvious. Oppose any effort to use the Court's ruling to defund Obamacare, and push to make it even better--not simply by extending subsidized coverage, but making it even easier for states to set up single payer systems, as Vermont is currently doing under the provisions of the ACA. Corruption on the part of one party is not an excuse for the other party to cave into it. You don't end fighting by running from a fight--you end it by winning.
So, my advice to progressives regarding this latest twist in the road for the ACA? Cheer up. And then buck up. Remember the words of Edward Kennedy, a lifelong champion of health care reform:
For all my years in public life, I have believed that America must sail toward the shores of liberty and justice for all. There is no end to that journey, only the next great voyage. We know the future will outlast all of us, but I believe that all of us will live on in the future we make.
Read more at http://www.brainyquote.com/quotes/authors/e/edward_kennedy.html#EP2IVGddMHSzigaP.99
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