The Supreme Court's recent surprise decision to take up King v. Burwell, a challenge to the Affordable Care Act -- on the grounds that federal subsidies are illegal for states that failed to set up their own health-insurance exchanges -- sent former New York Times Supreme Court reporter Linda Greenhouse on another aggrieved liberal rant against the conservative-dominated Court for its audacity: "Law in the Raw."
Greenhouse failed to mention Obama-care architect Jonathan Gruber's inconvenient gaffes in several clips that have surfaced, in which he was caught telling the truth about the selling of the program on false pretenses, as well as making the relevant point that "if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits,” while crediting the "stupidity of the American voter" for Obama-care's passage.
Times columnist Paul Krugman also smugly weighed in in two columns, saying the case was without merit and dismissing as a "fake scandal" Jonathan Gruber's inconvenient gaffes.
But Obamacare opponents got an unlikely assist from another liberal Times columnist.
First, Greenhouse was shocked and appalled by the "naked power grab by conservative justices."
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”
After a backhanded defense of the Supreme Court rushing to act to settle Bush vs. Gore, Greenhouse explained that this in fact "a naked power grab by conservative justices."
That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was a conflict in the circuits on the constitutionality of the individual insurance mandate. So the Supreme Court’s grant of review was not only unexceptional but necessary: a neutral act. The popular belief then that the court’s intervention indicated hostility to the law was, at the least, premature.
Greenhouse made a torturous defense of the law's wording, then summarized:
So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled -- sometimes it has seemed against all odds -- to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.
George Washington University law professor Orin Kerr found Greenhouse's reasoning "puzzling" in a Washington Post opinion, seeing a double standard.
Meanwhile, liberal columnist Charles Blow was infected with a rare case of ideological integrity in Monday's "Partisanship Breaks the Government," actually citing Gruber and suggesting his comments bolstered the court case against Obama-care (without mentioning his colleagues, Greenhouse and Krugman).
Blow opened with standard criticism of the anti-Obama GOP, but added this wrinkle about SCOTUS "taking up yet another challenge to the Affordable Care Act."
It centers on the question of whether people who signed up through the federal exchanges are eligible for subsidies or if those subsidies are only available to people signing up through exchanges set up by states, something many Republican-led states refused to do.
Some have called this ambiguity little more than a typo in a voluminous bill. Linda Greenhouse, my Times colleague and expert interpreter of all things Supreme Court, called the decision to take the case “worse” than the court’s ruling on Bush v. Gore, as well as “profoundly depressing,” and suggested that the court is beginning to look evermore like “just a collection of politicians in robes.”
But the typo defense is complicated by the comments of an architect of the law, Jonathan Gruber, a health economist. In 2012, he said, “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” This suggested that the clause was no accident, or at least one he and others found fortuitous.
Perhaps he should tell smug Krugman, whose "Death by Typo" appeared November 9, even as the first infamous clip from Obamacare architect Jonathan Gruber clip had begun circulating:
But it now appears possible that the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an equally obvious typo.
But if you look at the specific language authorizing those subsidies, it could be taken -- by an incredibly hostile reader -- to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language....
Krugman didn't mention Gruber, and didn't even quote the passage of Obama-care in question, but Powerline did (emphasis theirs):
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of--
(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act….
As John Hinderaker argued:
....you don’t have to be an “incredibly hostile reader” to think that “an Exchange established by the State” means an exchange established by the state.