Groundhog Day for Obamacare: Back to the Supremes

Like small-town mayors across the nation on Groundhog Day, the Supreme Court will get to make the call on whether Obamacare casts a shadow.

The Affordable Care Act (ACA, aka Obamacare) is again on its way to the Court for further review, as they say in the NFL. Its future is on the line, but for completely different reasons than the first time in 2012.

Why should you care? That’s an open question.

Though the Supreme Court decided in November 2014 to hear the King v. Burwell challenge to Obamacare, the news media have only recently ramped up the crescendo of attention leading up to the scheduled March 4th presentation of oral arguments.

Pundits continue to treat Obamacare at High Court the same way they treat the Super Bowl or the Final Four, plying us with analysis, odds, predictions, unconfirmable backstories, and features about key players. But neither the frenzied punditry nor the case itself addresses numerous bizarre, convoluted, surreal, heartbreaking, mind-blowing stories about health care in the US, many of which are actually true.

The crux of the current case is this: Will people seeking health insurance through federal exchanges in the 36 states that lack state exchanges be eligible for federal subsidies? This is at issue due to ambiguity around the use of the word “state” in the text of the ACA, as in “an exchange established by the state.” Opponents of ACA say that state means state, as in Wisconsin, and that the law intended federal subsidies to be available only to those using state exchanges to purchase health insurance. In contrast, supporters of the ACA claim that of course the word “state” was intended to include the federal government, a position shared by the IRS as evidenced in its definition of exchange.

No doubt, the Court’s decision will have enormous consequences. A NO to subsidies for those using federal exchanges could lead to either further Congressional action (probable train wreck), or a cascading collapse of the premise of the whole law. A YES to subsidies would permit Obamacare to continue as is; not a pretty sight either.

So what are we missing here? The real shadow of Obamacare stretches much further than the decision in the current case.

  1. Our health care system, the worst of any among the so-called developed Western nations, will continue to serve the health-industrial complex of insurance, pharmaceutical, hospital, and medical products corporations, plus all the accountants and lawyers who function as its foot soldiers — instead of serving the health care needs of the populace. Obamacare did nothing to change this.
  2. Obamacare has been a mess from the start, so judicial or legislative amputations, grafts, bandaids, transplants, face metal, or strategically placed tattoos will further complicate the situation without improving it.
  3. The Supreme Court, unelected, almost untouchable, has the last word. It can affirm lower court decisions by refusing to review them; it can overturn them by choosing to take a case. It can and does regularly make up new doctrine to justify any decision. Does this sound like democracy to anyone out there? (P.S. The US Supreme Court is the most powerful in the history of the world and has Congress to thank for that. See this article, or for a longer discussion read my book, Gaveling Down the Rabble.)
  4. Single Payer. Single payer health care systems (and there are many nuanced versions) were off the table when Obama held his health care summits. Ditto Clinton. This is because they address the health care needs of the entire populace, serve public health, and save money at the same time—precisely because they skip the part about providing an eternal and unchecked meal ticket for the health-industrial complex of corporations mentioned above.
  5. Let’s not allow the recurring drama of Obamacare running the judicial gauntlet to distract us from the bigger picture: fighting for Single Payer health care, and against corporate constitutional protections that strangle our democratic efforts.

JAM, Feb. 2015