Yes, King v. Burwell is fundamentally a case dealing with a statutory matter, not a lofty constitutional claim, but at the end of the day one must not forget that this statutory-based case, if handled improperly by the Supreme Court, will harm millions of Americans, making economic inequalities worse in this country and sending the nation’s health care system into chaos. That’s according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars, who along with Yale Law School Professor Abbe Gluck were featured in a February 26 ACS briefing on King, which the Supreme Court will hear oral argument in on March 4.
“I think it’s important for us to focus on who is going to suffer from a result of this [a ruling by the Supreme Court that would buy the Obamacare challengers’ argument],” Chemerinsky said toward the end of the discussion. “There are millions of individuals who will no longer have health insurance because they won’t be able to afford it without” the tax credits. Such an outcome would bring down the Affordable Care Act, leaving millions without health care coverage and millions more with higher costs to keep it, he said.
Gluck noted the highly politicized nature of King, but focused on the statutory challenge and the role of the Supreme Court.
“The case at bottom is about how the Supreme Court is going to do textual interpretation of four words in a two-thousand page law that is very complex. The challengers want the Court to look at these four words – the words are ‘established by the state,’ … in a vacuum, and the government is saying just as the court has done time and time again … that you have to look at statutory language in context and against the backdrop of all of the other legal principles, including federalism and agency deference that the Court has traditionally used to interpret statutes.”
Gluck said there is a lot of extra textual narrative and history being invoked in the case, but not by the government. “There is a whole blogosphere set of activity, that is aimed to construct a narrative to convince the Court that what the challengers are arguing is true – that it is actually possible that Congress could have written a statute into which it sowed the seeds of its own destruction,” Gluck continued.
Without that narrative, Gluck said, “it is impossible to think that any court would buy that story because it is so destructive to the statute as a whole and it is implausible to think Congress would have ever intended it.”