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Right is right

Date: 2015-Jun-26           Author: Barry Shatzman

In his dissent in King v. Burwell, Justice Antonin Scalia got so much wrong that it would be easy to overlook how he got the most important thing exactly right.

He's wrong technically. When he argues that an "exchange established by the state" can in no way include the federal exchange, he ignores the entire body of the Patient Protection and Affordable Care Act (PPACA), as well as statements and actions by the members of Congress who actually passed the law.

He's more wrong in hanging onto the ambiguous phrasing to render an opinion that could have cost 10 million Americans health insurance and more than doubled the premiums of others. Should that have been the basis of his decision? Not necessarily. However, he forgets that the judicial branch of government was created to benefit Americans - not to harm them. And had 2 other justices agreed with him, millions of Americans would have been harmed - while benefitting virtually no one. That isn't only wrong... it's shameful.

But Scalia went on to write that if Congress did mean for the subsidies to apply to all exchanges, then Congress should have fixed the law...

[The Constitution] made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power... We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that "[o]ur task is to apply the text, not to improve upon it."

And that's where he nailed it. Bam!

All Congress had to do was pass a one-page bill making it clear that an exchange is an exchange, and there would have been nothing left for the Supreme Court to decide. But we told you this already. This is the sample letter we provided for you to write to your representatives...

There is no doubt that when Congress enacted the law in 2010, the intent was to make residents of all states eligible for insurance subsidies - and not just those who live in states that maintain their own exchange.

In addition, a ruling in King v. Burwell that invalidates subsidies for those states that rely on the federal exchange would cause millions of Americans to lose their insurance and significantly increase premium prices for others. This not only could be devastating to their personal finances, but to their health as well.

As your constituent and a member of Lobby99, I am urging you to support a bill that would clarify the language of the Patient Protection and Affordable Care Act such that residents of every state would be able to continue to receive this financial assistance.

This bill should be passed immediately - before a decision in King v. Burwell - so that the case can be rendered moot prior to a court decision.

Republicans didn't do anything. Democrats didn't do anything. In other words, your elected representative relegated the health care for 10 million Americans to a coin flip.

So the next time something like this comes around... what are you going to do?

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