If one respected Supreme Court watcher is right, the arguments justices heard today in the latest challenge to Obamacare could be setting up a legal version of "too big to fail."
The case, King v. Burwell, hinges on the law's phrasing that subsidies are available to those who purchase health insurance on an exchange "established by the State." Some of Obamacare's taxes are also at stake. Because 34 states (including Georgia) declined to establish their own exchange and the federal government instead operates an exchange for their residents, a ruling against the government could turn the exchange-based insurance markets in those states upside down.
Lyle Denniston of SCOTUSblog suggests the questions from the justices to lawyers for each side could indicate how their private deliberations about the case will be shaped on Friday:
"From the time that the Supreme Court agreed in November to hear the challenge to subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states, the Obama administration and its supporters have talked darkly about the collapse of the entire ACA if that challenge succeeded. Both President Obama and his top health policy aide, Health and Human Services Secretary Sylvia M. Burwell, publicly stressed that the administration would have no way to fix the law if that happened.
"The uncertain thing, as the hearing approached, was whether that message would get through to the nine members of the Court who would be the deciders. If there was one dominant theme at the actual hearing, aside from how to read a complex federal statute, it was that a victory for the challengers would come at perhaps a serious loss -- perhaps a constitutional loss, but at least a human and social loss in the end of the most ambitious (and audacious) health care plan ever enacted in America."
This argument by the government and sympathetic justices amounts to the notion that, if a government program can simply become well-entrenched enough before any legal challenges reach the high court, it need not matter what the law, you know, actually says. The law is too big to fail.
This is as preposterous as the excuse offered for the law's phrasing, that "established by a state" was really just a typo . Imagine this scenario:
The Georgia Legislature, acting on the recommendations of Gov. Nathan Deal's education reform commission, next year passes a law saying state education dollars "follow the child to any public school." Only, when the Department of Education implements the law, it actually sends the money to any school, public or private, of the child's choosing. Deal defends the move as being consistent with his intent and says it's obvious the law was supposed to say "any school" instead of "any public school" because it was intended to be available to as many kids as possible. In court a couple of years later, he has the state's lawyers suggest judges can't interpret the law's language as it is plainly written, because tens of thousands of kids have already used the money to pay for private-school tuition, and a change would be too disruptive.
I suspect a great many of the people who side with the Obama administration in King v. Burwell would find themselves on the other side of such a scenario (and, yes, the reverse might well be true, too). But in neither case does the "too big to fail" argument hold water from a legal perspective. It does, however, risk setting a dangerous precedent in which the legislative and executive branches essentially say "my bad" if the proper interpretation of the law doesn't match their wishes, and the judicial branch pulls out a big bottle of legal Wite-Out to fix it for them.
The court might well choose to do just that rather than forcing Congress to deal with the problem. But it will be another sign of erosion of those quaint notions of "separation of powers" and "checks and balances."