Supreme decision

MIAMI – There is a ticking time-bomb threatening the lives and well-being of millions of Americans: King vs. Burwell. That’s a case argued last week before the United States Supreme Court that could end the federal subsidies that have enabled 7.5 million previously uninsured limited-income Americans to afford health coverage under Obamacare.

A Court ruling to throw out the subsidies evidently would have a devastating effect for many of those benefitting from them – especially the sickest and poorest among them. Even more ominously, the end of federal subsidies, by removing a key pillar of the program, is likely to lead to the unraveling of the whole edifice of Obamacare.

That would be a tragedy and a travesty. The Affordable Care Act (ACA), the formal name for Obamacare, has increased, significantly, the percentage of Americans with health insurance, reversing a long-term trend in the wrong direction. That’s an important accomplishment. Now all that progress could be erased. And, in that case, of all fifty states, Florida would be the biggest loser.

The arguments employed by the Solicitor General, who represents the administration, and the lawyers challenging the subsidies, are properly legalistic. The challengers argue that the “plain language” of the law makes federal subsidies illegal because it refers to states, not the federal government, establishing health exchanges. The government argues that the fact that the ACA provides for federal exchanges and allows the federal government to step in if states do not establish their own exchanges evidently implies Congress intended to allow federal subsidies.

Whatever the legal merits of the two contradictory interpretations, the fact is that this case is mainly a political struggle that will be decided by the ideological balance of forces on the Court. And, indeed, by all accounts the Court is closely split along ideological lines and the outcome is uncertain.

But the ideological and political context that serves as the backdrop is not hard to decipher. Obamacare has been a favorite target of the right since before day one. Republicans in Congress fought the law when it was first introduced. At the time the Democrats controlled both house of Congress, however, so the GOP lost and Obamacare passed.

When Republicans captured the House, they voted four dozen times to abolish Obamacare. Since the Democrats controlled the Senate and the White House, the Republicans knew their bill would go nowhere. Yet they kept introducing it as a kind of ritual bow to their hard-line base and as a message about what they intended to do with Obamacare if they ever acquired enough power to do it.

Unfortunately for the Republicans, even when they won control of the Senate as well as the House they didn’t quite get there. They faced two unbreakable barriers: the 60 voter supermajority the Republicans themselves had helped establish as a requirement for passing anything in the Senate, and the certainty of a presidential veto.

The judicial option seemed therefore a more viable way to slay the Obamacare dragon. After all, the Court had revealed its rightist bent some fifteen years ago in its Bush vs. Gore decision, a ruling almost as shameful as “separate but equal” and Japanese internment. Since then, most of the players have changed, but the Court itself has moved even further to the right.

Last year the right took aim at the entire Affordable Care Act, challenging its constitutionality. The Court ruled the ACA to be constitutional but also that the federal government could not force the states to expand Medicaid, an integral component of Obamacare. That second part of the ruling is already causing people to lose their lives in the 26 Republican-run states that have not expanded Medicaid, as a recent issue of The Nation magazine focusing on a depressed area of Kansas reveals in rich detail.

Still, Obamacare survived last year’s scare, albeit not unscathed. So this year the right has come back for another bite at the apple, one they hope will accomplish, through an indirect route, what they failed to accomplish last year through a frontal assault.

The right’s near-obsession with undoing Obamacare has at least two sources. The most obvious is the right’s white-hot hatred of Obama and the desire to crush his presidency and deny him any legacy. Explaining that hatred and that desire would take me too far afield, but I will say that it involves the sociological analog of a chemical bond between racism and the ideology of individualism.

The second source is more purely ideological. Obamacare has been accurately described as the most important social reform since Lyndon Johnson’s Great Society of the 1960s. That’s a hard pill for the right and the Republicans to swallow. For decades they have been embarked on a path toward undoing social reforms that go as far back as the Progressive Era of the 1920s and include the New Deal and the Great Society.

They thought they had killed not only the possibility but the very idea of social reform, and here comes Obamacare. They must slay the dragon that has disrupted their neat historical narrative of an endless flow to the right.

Will they succeed? Despite the Court’s rightist tilt, there is hope they won’t. That hope centers on Justice Anthony Kennedy, the perennial swing vote, who posed some tough questions during last week’s oral argument. Kennedy is aware that killing subsidies would wreak havoc in state and national health care systems. According to an account in the Washington Post, Kennedy told Michael Carvin, the attorney for the challengers, that their reading of the law, which amounts to “‘telling the states to “create your own exchange, or we’ll send your insurance market into a death spiral,’” is the kind of coercive pressure the federal government is not allowed to apply.” ‘“Perhaps you will prevail in the plain words of the statute, [but] there’s a serious constitutional problem if we adopt your argument,”’ he added.

While the final ruling, expected at the end of June, is unpredictable, what is predictable is that a victory for the anti-Obamacare forces will have tragic human consequences and will move this country further from the ideal of a great society and toward a reality of a dog-eat-dog nation.

[Editor’s Note: If anti-Obamacare forces prevail in the Supreme Court later this month, the most affected state would be Florida where 1.3 million would find themselves without health insurance while losing $389 million a month in subsidies. It has been documented that several zip codes in Miami have the most Obamacare participants in the nation.]

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