The next legal challenge to Obamacare is deadly serious – and seriously silly

Posted at 6:06 AM, Nov 11, 2014
and last updated 2014-11-11 09:30:16-05

You’ve heard by now that the Affordable Care Act is facing yet another mortal threat from a legal challenge before the Supreme Court. Two parts of that story bear some decoding.

The language

Here is the lead of the story in The Washington Post about the court’s decision to take the case. 

The Supreme Court announced Friday that it will hear the most serious challenge to the Affordable Care Act since the justices found it constitutional more than two years ago: a lawsuit targeting the federal subsidies that help millions of Americans buy health insurance.

More than 4 million people receive the subsidies, which the Obama administration contends are essential to the act by making insurance more affordable for low- and middle-income families.

I have highlighted the word “subsidies” because it is the wrong word, yet it is used universally by politicians and in news reports to describe the legal issue and the program.  It is a distorting error to do so.

At issue here is the legal status of tax credits that some Americans are eligible to receive when they buy health insurance through one of the government exchanges.

There are federal and state exchanges. One sentence in the voluminous bill says that the tax credits will be available through exchanges “established by the state.”  Opponents of the ACA say that clause means the tax breaks are only available through the state exchanges and not the federal ones.  The Democrats who wrote the bill and the administration that wrote the bill say that’s nonsense; the sentence contains the legislative equivalent of a typo and should be fixed.

More on the merits of that argument below.

But first, we need to get rid of the word “subsidy” when talking about this. It is manipulative and pejorative.

The tax code has thousands of pages of tax credits and deductions that we do not call subsidies. They are subsidies, sure, just like this one. But when they benefit anyone below the middle, they’re called subsidies. The Republicans have won a language game.

No one refers to the mortgage-interest subsidy. Or the charitable donation subsidy. No one calls the carried-interest rule a subsidy for managers of hedge funds and private equity funds, but it is.

This is an example of what linguists and political scientists called “crafted talk,” words manipulated to render certain associations. Most people have a coarser name for crafted speech.

Republican crafters of language won a big, silent battle when “Obamacare” became the substitute for the Affordable Care Act.  Maybe in a decade, Obamacare will be a term of historical affection and legacy.  So far, it has been a term of derision.

But it insults the president, and he can take it.

Calling a tax credit a subsidy only when it applies to the less well off is insulting to those who shouldn’t have to take it. We should knock it off.

The case

If the administration loses the case, it will have a serious impact on the success of the program, no doubt.

But the fact that the Supreme Court is hearing it at all is pathetic.  It is yet another sign that the federal government can’t do basic business.

Legislation is written in technical terms and can run for hundreds of pages. Sometimes there are mistakes. Perfecting legislation routinely corrects those mistakes.  The unclear sentence in this law already should have been fixed by Congress, one way or the other. The Supreme Court should never have been allowed to go near this issue.

That a technical flaw, an imprecise phrase, has become a weak link to demolish a major program affecting millions of Americans is almost comedy. Congress is yielding power to the judiciary, in this case, out of sloth and incompetence. It isn’t comedy but it is pathetic.

[Also by Dick Meyer: Who should decide same-sex marriage?]

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