A monument on the Civil War battlefield at Gettysburg identifies the “high water mark of the Confederacy,” where General Pickett’s charge temporarily breached the front lines of the Union Army. A significant issue in that War was the refusal of Southern states to accept the result of the Presidential election. The Union’s ultimate victory vindicated the principle of majority rule within our constitutional system.
More than 150 years later, this democratic principle is still under siege—not by force of arms, but by the persistent efforts of the losers in legislative battles who seek to overturn the majority vote in the courts. Nowhere are those efforts more relentless and dogmatic than in the profusion of lawsuits challenging the Affordable Care Act.
The challenges, however, hit their own high water mark when the Supreme Court granted review in King v. Burwell. Since then, the challengers’ claims, which were insubstantial to start with, have evaporated, laying bare both the absence of any coherent legal basis for the claims and the political nature of the litigation.
The challenges focus on the State insurance Exchanges required under the ACA. An Exchange is essentially a Travelocity for insurance, where individuals can compare prices, find the best deal, and purchase their insurance. Section 1311 of the ACA requires all States to establish an Exchange. If a State does not establish the “required Exchange,” however, Section 1321 of the Act instructs the Secretary of HHS to establish “such Exchange” for the State.