The Antidisestablishmentarianism Theory of Obamacare Illegality. (The ACA has a (dis)establishment clause! Who knew?) [Updated.]

A federal judge in the District of Columbia will hear oral arguments on Tuesday in one of several cases brought by states including Indiana and Oklahoma, along with business owners and individual consumers, who say that the law does not grant the Internal Revenue Service authority to provide tax credits or subsidies to people who buy insurance through the federal exchange. …

The subsidy cases, if successful, would strike at the foundation of the law. Subsidies and tax credits, which could be available to millions of low- and middle-income Americans, are central to Mr. Obama’s promise of affordable care. In drafting the law, Congress wrote that such financial help would be available to people enrolled “through an exchange established by the state” under the law.

A New Wave of Challenges to Health Law, Sheryl Gay Stolberg, New York Times, today

Hmm.  Okay, let me take a crack at this.  The law gives each state the option of running its own exchange or instead allowing the federal government to run an exchange for the state–an operation that must be done separately for each state, because each state has its own insurance companies offering different policies than other states, and subject to state insurance laws and state agency oversight.

The law doesn’t say “through an exchange run by the state” under the law; it says “through an exchange established by the state” under the law.  The states know their options.  Fourteen of them chose to establish an exchange by setting one up and running it.  The rest have chosen to establish an exchange by delegating to the federal government the job of setting up and running the exchange for the state.

The law itself, in other words, by requiring that each state choose one of two mechanisms to establish an exchange–directly or instead by delegation to the federal government–required every state to have (i.e., to establish) an exchange.  The tax credit, or subsidy, provision of the statute does not limit tax credits (subsidies) to people who live in states that choose to physically set up and run the state’s exchange itself.  It provides that benefit to people regardless of their state of residence, because by operation of law–specifically, by operation of that law–states can establish their exchanges by delegating to the federal government the physical setting up and running of the exchange.

Depends, in other words, on what the meaning of established is.  Or, more accurately, on what Congress intended the meaning of “established” to be.  And I’ve just told you what that is.  Surely, the federal courts understand the concept of contracting out a tech job.  Thirty-three states have chosen to contract out this job to the federal government.  Except, of course, that the contract was not negotiated but instead compelled by law.

Voila!  The antidisestablishmentarianism theory is disestablished.  The tax credits/subsidies clause in the ACA applies even to you, Red State denizens who qualify financially.  Congratulations.  I mean, my condolences.

But also in the article is this jaw-dropper, a quote from Jonathan Adler, a law professor at Case Western Reserve University and one of the two proud creators of the ACA disestablishment-clause hypothesis:

Among critics of the law there is a feeling that the law doesn’t have the same legitimacy as a law that passed with bipartisan support.

Let me take a crack at this, too.  This will only take a moment: I don’t recall the provision in the Constitution that classifies laws duly enacted without bipartisan support illegitimate.  But I do wish the Dems had remembered that Article or Amendment in 2001 when Congress enacted the first set of tax cuts for the wealthy, without bipartisan support.  Not that it would have mattered, though.  I mean, who knew that when the Supreme Court put George W. Bush in office via an opinion that said its legal reasoning would apply to that case only, the five justices in the majority also meant that the clause in the Constitution that delegitimizes laws enacted without bipartisan support doesn’t apply to laws enacted by only Republicans?   But you can bet it doesn’t.

Adler’s partner in theory development is a Cato Institute “health policy scholar” Michael F. Cannon, and the Times article gets a quote from him too.  Not to be outdone in the outragousness department by his compadre, Mr. Cannon thusly described the Strategic Airwaves Command plan developed immediately after the ACA was signed into illegitimate law:

After the A.C.A. was enacted and after the president signed it, a lot of people — me included — decided that we weren’t going to take this lying down, and we were going to try to block it and ultimately either get the Supreme Court to overturn it or Congress to repeal it.

Mr. Cannon will testify today at a televised House committee hearing about his and Professor Adler’s theory.  The professor must have a scheduling conflict, because he apparently is not on today’s witness list.  But presumably Mr. Cannon, scholar that he is, can cite the legal authority for the proposition that laws aren’t legitimate unless enacted with bipartisan support if it’s a Democratic rather than a Republican majority that voted for the bill.  He’s not a lawyer, but he does work for the Cato Institute.  Which, as the Times article notes, is libertarian-leaning.  As opposed to, say, democratic-leaning.  But not as opposed to fascist-leaning.  Which the current Republican Party, egged on by its corporate-funded puppetmasters, is.

What’s next from the libertarian crowd?  Polling places only in gated communities? Damn! I shouldn’t suggest it, should I?  Oh, well; they’d have thought of it on their own soon enough. That’s why Cato is called a think tank.

UPDATE: Reader Jack writes in the Comments thread:  “The relationship between Cato and the Ayn Rand Institute (ARI) improved with the nomination of Cato’s new president John A. Allison IV in 2012. He is a former ARI board member and is reported to be an “ardent devotee” of Rand who has promoted reading her books to colleges nationwide.” Wiki

Also, “….but so intense is Allison’s devotion to Rand’s work that he has waged a campaign to make college students read it, using the power of the BB&T Charitable Foundation and millions of dollars in donations to schools to achieve his goal.” Jane Mayer,”

It does seem to me that the mainstream media should stop referring to Cato as a libertarian think tank now that that organization is simply an arm of the Koch brothers’ propaganda machine.

ALSO: Here’s a report on the argument yesterday afternoon in the case.

SECOND UPDATE: An exchange between reader EMichael and me in the Comments thread:

  • EMichael
    December 4, 2013 9:28 am

    Hard to figure out whether to laugh or cry.

    Fairly humorous that one half of the GOP’s healthcare reform platform is to stop the ambulance chasers via tort reform while using the same ambulance chasers to stop the Dem healthcare reform.

    The sad part is that there are judges who will not just laugh at these people and throw them out of his courtroom.

  • Beverly Mann
    December 4, 2013 1:37 pm

    Yup, EM. There’s a cadre of lawyers who have made this their specialty: tortious-interference-with-Obamacare. It’s apparently quite lucrative.