This post originally appeared in The Washington Spectator.
By Lou Dubose
Those who filed briefs in defense of Obama's legislation are recognizable: the American Cancer Society, the American Academy of Pediatrics, et al. There is a different anthropology among those who filed briefs supporting the plaintiffs who are challenging tax subsidies for low-income buyers of health-care insurance policies.
Texas's Black Americans for Life considers abortion and contraception "a tool by some who wish to target the African-American community."
The amicus briefs filed in the challenge to the Affordable Care Act (ACA) to be argued before the Supreme Court on March 4 illuminate the Great American Political-Cultural Divide.
Colorado's Mountain State Legal Foundation is "dedicated to bringing before the courts those issues vital to the defense and preservation of individual liberties, the right to own and use property, and the free enterprise system."
The American Civil Rights Union is "dedicated to defending all of our constitutional rights, not just those that might be politically correct."
Senator John Cornyn of Texas is named on the amicus brief filed by 16 Congressional Republicans, an unlikely choice to lead any health-care pleading.
At 26.8 percent (24.81 percent after ACA enrollment), Texas leads the nation in the percentage of residents lacking health-care coverage. It also leads the nation in the number of eligible residents, 1,046,430, who are shut out of Medicaid. Texas, like 25 other Republican-led states, has rejected the Medicaid expansion provided through the ACA.
A Fight over Five Words
The ACA creates insurance-market exchanges through which anyone can purchase private health-insurance policies. In an attempt to subvert the law, most states governed by Republicans refused to establish exchanges. But the law also created a federal exchange, where residents who are denied access to state exchanges can purchase insurance. Currently, state and federal exchanges provide subsidies for low-income purchasers of insurance.
According to the plaintiffs, one phrase in a section of the statute describing the subsidies -- "Exchanges set up by the State" -- restricts the subsidy program to state insurance exchanges, although other language indicates that Congress intended to extend subsidies to all insurance buyers who meet the law's income qualification.
This lawsuit isn't what it claims to be.
Contradictions and hypocrisy underlie the intent of the plaintiffs and the politicians supporting them.
Consider the plaintiffs.
David King and three other residents of Virginia, which has no exchange, qualify for subsidies provided through the federal exchange. They are asking the Court to overturn the subsidies, because, on ideological grounds, they object to the ACA's mandate requiring individual health-care coverage.
Consider the elected officials.
John Cornyn, for example. Or Florida's Marco Rubio, or Utah's Jake Garn, or Tennessee Rep. Marsha Blackburn. All signed the anti-subsidy amicus brief filed with the Court, and all represent states whose Republican governments refused to create exchanges. They are petitioning the Supreme Court to hand down a decision that will strip subsidies from low-income residents in the states they represent.
It requires at least four justices to decide to hear a case. The activist and Republican majority on the Roberts Court has decided to hear the appeal of a lawsuit filed and financed by ideologues determined to destroy the Affordable Care Act.
To decide on behalf of the plaintiffs, the justices will have to ignore principles by which they have decided cases requiring them to interpret the meaning of statutes. Yale Law School Professor Abbe Gluck explains in an article published by Scotusblog.
Republican justices, he writes, in particular Antonin Scalia, are "textualists" who have "repeatedly emphasized that textual interpretation is to be sophisticated, 'holistic' and 'contextual,' not 'wooden' or 'literal,' to use Justice Scalia's words."
Gluck quotes Scalia's explaining textualism in an opinion handed down in June 2014, in which the justice describes "the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."
Gluck also quotes four of the five Republican justices who published a joint dissent in the 2012 case that upheld critical provisions of the ACA. They address the very subsidies that are now before the Court: "Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. That system collapses if the federal subsidies are invalidated."
The preceding sentence is critically important. The Republican justices know "the system collapses if the federal subsidies are invalidated."
Lou Dubose is the editor of The Washington Spectator.