While not technically on whistleblower laws, today’s arguments before the Supreme Court concerning the Affordable Care Act are anything but irrelevant to us. The structure of the entire health care system is in the balance, with millions of people now eligible for subsidies potentially losing that benefit if the narrow reading of the statute urged by the petitioners is blessed by the majority on the court. We might have hoped that the ACA debate was settled after the Court’s 2012 ruling upholding the law, but that was perhaps too much to hope for in these times of “I’m against whatever you’re for” political division.
As the descriptions of the argument have come down, the justices assumed their normal positions, with the four liberal justices arguing that the wording of the statute must be read in context, the three far right justices taking the view that the literal language of the law must be followed even if it eviscerates large portions of the statute, leaving only Justice Kennedy and Chief Justice Roberts to decide the matter. Roberts asked no questions, and Kennedy seemed troubled by the petitioner’s arguments.
Yesterday, Professor Laurence Tribe penned an articulate piece on both the law and the politics of the case. It’s a good read.
It’s hard not to be struck by the amount of energy and turmoil going into the interpretation of four little words in a 1,000 page statute. If we are going to overturn legislation with this kind of legalistic nit-picking, will there ever be an end to the losers of legislative fights sifting through the volumes to find yet another basis for re-igniting the fight? Is nothing ever settled?
I predict that we’re in for another 5-4 nail-biter over an obscure issue that no one saw coming two years ago. Rodney King once famously said “Can’t we all just get along?” It’s tempting to paraphrase him in this context: “Can’t we all just move forward?”