Lily, Rosemary & the Jack of Hearts

Longtime KPC friend and advisor @GaddieWindage interrupted his pilgrimage to St. Andrews to commune with us about SCOTUS, the ACA, and the GOP.

Here’s Keith:

Why was a vague liberal law passed by Congress upheld by a conservative Court?

And why is Congress actually lucky that the Court upheld the law?

Precedent and legislative intent saved the law.  The Court, confronted with ambiguity in the law, looked to the broader structure of the law.  Chief Justice Roberts and the 6-3 majority assessed Congress’s intent, determining that it “passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” 

In looking at the act, the Court determined that ‘inartful drafting’ of the massive law was insufficient grounds to strike down a key provision.  Congress’s larger intent was to have all Americans be eligible for insurance tax credits, regardless of technical failures in the legislative language.

The outcome saved the Republican-controlled Congress from a potentially disastrous situation. Had the Court overturned the PPACA tax credit for individuals covered by the national health exchange, it would have wiped out expanded coverage for millions of low-income earners. The result would be two health insurance systems: one made of state health exchanges where people had broad-based coverage and also received a national subsidy; and another made up of states with far more uninsured who nonetheless paid taxes to subsidize healthcare elsewhere.

The chaotic disruption of the marketplaces in those states would have created a ‘death spiral’ for insurers who had organized and invested based on the new regulatory regime. Those insurers are also major campaign donors.  If Congress failed to restore the tax credit, voters who lost health coverage might have mobilized against congressional Republicans in the 2016 elections.

I have seen a lot of people excoriating John Roberts and talking about how liberal SCOTUS has turned under his leadership, but I am not buying it.

This decision was a no-brainer, and was far from a liberal decision, just as the ACA is not really a liberal policy.

Here’s Keith again:

It is, in many ways, a conservative decision. The Court has moved to protect a rent-seeking market.

Indeed.  The ACA is a massive, fugly, boondoggle that just backs more voters and more firms up to the trough.

A liberal policy would be government-run single-payer with tough price controls that ate into the incomes of doctors and cut the profits of big medicine.

A libertarian policy would be to stop the AMA from shrinking the supply of doctors, loosen licensing on many types of health care, allowing interstate competition among insurers, and so on.

The ACA is rent seeking on steroids. You know, just the way most conservatives like things.

An Obvious Solution

I'm missing something about the SCOTUS decision yesterday, on VRA.

The court (rightly) struck down the portion of the VRA that maintained restrictions that fall differently on different states.  And those differences demonstrably have no basis in actual misbehavior, or in fact any empirical data at all.

Yes, I understand the 15th Amendment says that Congress "shall have the power to enforce..."  But it's with "APPROPRIATE legislation."  The VRA as redone is not appropriate, and in fact it's clearly unconstitutional, for the reasons the court gave yesterday.  Two biggies:

1.  The 10th Amendment reminds us that certain rights belong to the states.
2.  The Constitution says, in Article I, Section 4, that the "time, place, and manner" of elections will be left up to the state legislatures.  Yes, it goes on to say that Congress can pass laws, like the one that coordinated Presidential elections, but that goes for all the states.  The Congress can't pick and choose, to say "We like this state, we don't like this state," without violating the 10th Amendment.  There has to be a reason.  A good reason.  A reason good enough to pass what judges call strict scrutiny.

So far, so good.  The court did the right thing.  But then they did something bizarre.  If you are going to say that Congress has to redo the section on deciding which states have to get pre-clearance to impose new restrictions or new rules, why in the name of sweet fancy Moses would you say "no states"?  They could have said, "Given the stakes, the current rules stay in place for a year, so Congress can change it."

But the obvious answer is this:  Congress can absolutely pass a law that says ALL states must pre-clear.  They passed a law that made unacceptable and unfounded differences in burden, so we'll strike that part down.  Then the SCOTUS should have said, "Until or unless Congress passes a new version of this section, all states have to pre-clear."  There is nothing unconstitutional about THAT.  The problem is the different burdens on different states.

The advantage of this is that, as a practical matter, the status quo is going to be privileged.  Saying that "No states have to pre-clear, but Congress can fix that", sounds fine, in theory.  But Congress can't find its own...well, knee with both hands right now.  The SCOTUS has set up a bitter and dangerous fight.  Go the other way:  make the status quo ALL states have to pre-clear.  Then, if Congress does nothing there is still a protection against state abuse by majorities.  And Congress is much more likely to do something, because there might be bi-partisan support in a majority of states to pass a new and more sensible law.

UPDATE:  Commenter notes "SCOTUS can't do that."  I should have been more careful.  SCOTUS cannot impose a new law.  But it is absolutely common either to stay the impact of a decision, or to impose by judicial order a reversion point when the elimination of the law itself would impose a harm worse than the harm being corrected.  So I am only proposing that the SCOTUS do this by judicial order, with a fuse.

If you read the VRA, and look at Section 4,  you'll see that the law says "(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which..."  It's the part after the "which" that was struck down.  So, the question is how to interpret that?  If you get rid of the part that describes the conditions, do you go to ALL states, or NO states?  You have to choose.  It's not obvious that NO states is required of the court.  They can say that by striking down the conditions on application of pre-clearance, that ALL states have to preclear, until Congress fixes the law.  That sort of thing happens all the time in election law.

So, commenter, your point is well taken, given what I wrote originally.  But I didn't mean "change the law."  I meant "change the temporary reversion point, by judicial order.