Map of life expectancy at birth from Global Education Project.

Monday, November 10, 2014

What happens if the Supreme Court loses legitimacy?

It appears well within the realm of plausibility that five justices of the Supreme Court have already decided to trash the Affordable Care Act by means of a preposterous legal maneuver. Paul Krugman discusses it here, and attorney Neil Seigel says pretty much the same thing here. So you have the perspectives of an economist, and a lawyer.

They, and many other sober observers, find the reasoning of the DC Circuit panel in Halbig v. King absurd. It will be reversed by the full court, and it has been resoundingly rejected by all other federal courts. The Supreme Court does not need to hear the case. Why have they chosen to do so?

As all our readers presumably know, the ACA has three main components, all of which are essential for it to work. It requires insurance companies to cover everybody for the same price, with an adjustment for age, regardless of their current or former state of health. In other words, you can't be denied coverage or charged a fortune because of pre-existing conditions. (That's called guaranteed issue and community rating, BTW.) However, if you do that, there's a danger that people won't bother buying insurance until they get sick. You need those healthy people in the pool to keep it affordable for everybody. Hence the individual mandate. Again, however, not everybody can afford insurance, so you have subsidies for moderate income people. (We'll leave the Medicaid expansion aside for now.)

The literal language of the ACA says the subsidies are available to people who buy insurance through "exchanges established by the state." But Republican governors refused to establish exchanges in many states, so the federal government stepped in on their behalf. Elsewhere in the ACA this is clearly intended and the federally run exchanges are fully the equivalent of state-run exchanges. It's just slightly ambiguous language, but the intent of the statute is clear. Yet Halbig claims that people who get insurance through federally-run exchanges aren't eligible for the subsidies.

Krugman and Seigel both state, quite boldly, in their own ways, that if the court buys this absurdity it will prove that conservative jurisprudence is not about upholding the law, or any theory of law; it is purely political, adopting any form of sophistry in order to further the conservative political movement and the interests of the Republican party. That millions of people will lose their access to health care, and many of them will die, would apparently mean nothing to Scalia and Alito.

But what happens to the American polity if half of us are forced to conclude that the Supreme Court is a fundamentally illegitimate institution? I hope John Roberts is thinking about that.


kathy a. said...

The "state" is also used generically to refer to government.

I have not been following this closely at all, but it only takes 4 votes to grant cert, and there may not be 5 votes for throwing the country into chaos.

Best if we extinguish the fire in the hair, and focus on getting some good amicus briefs before the big court.

Cervantes said...

Problem is, why would 4 justices grant cert if they didn't think they had 5 votes?

kathy a. said...

'Cause they can? They don't necessarily discuss much before taking the vote on whether or not to grant cert. It just goes that way sometimes.

It is indeed worrisome, though. Cert is granted on only a small fraction of the cases requesting certiorari; and what the court decides is of great importance.

kathy a. said...

I can't really speak to your original question about the court losing "legitimacy." They have made some crappy decisions in the past, and we're stuck with them.

This branch of government is not supposed to be influenced by politics; certainly not as directly as the executive and the legislative. Political "legitimacy" is not the same as constitutional legitimacy -- so what they decide on constitutional issues is supreme. But the other branches can work to change a particular bad decision via other means -- like adopting legislation.

kathy a. said...

Or making sure the president is someone you would want to be nominating justices; making sure the legislative branch has representatives who think things through.

kathy a. said...

*by "representatives," I mean both senators and congresscritters.

Don Quixote said...

Yes, Kathy--but to think of changing the legislative makeup when the congresscritters are elected with advantages due to Republican gerrymandering and the horror of Citizens vs. United . . .

There is a domino effect, at least in my mind and in many others', that started with the installation of conservative, ideologically motivated Supreme Court "justices" under Bush the first. The court was able to apply specious logic to Gore vs.--was it Bush?--and stop a recount that probably would have won Gore the presidency. A right-wing judicial fiat installed Bush and Cheney; 9/11 "happened" (not sure what happened that day but, as everything else Bush & Cheney told us were lies, so was their version); the Iraq invasion went ahead, as planned; the public sector was basically transferred to the private sector; and judicial activists were installed across the spectrum of federal courts.

The idea of Clarence Thomas being a SPJ is a horrible thing. If the conservative activists on the court are allowed to invalidate the Affordable Care Act, they will also be guilty of mass murder.

I'm no lawyer, obviously but this is how I see things. And the only solution to me seems to be impeachment of Scalia and Thomas--again, difficult with an obstructionist, bought-and-paid-for congress (except for Bernie Sanders and choice others), or adding two liberal justices to the court. What would THAT require?

kathy a. said...

Well, here's a little something that might help:

I have to take the longer view. Must. Cannot have hair on fire all the time. But as a lawyer [not on this kind of case], think the link makes sense.

Don Quixote said...

Thanks, Kathy. Will read it now! Must find hope where I can get it.