In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.
Scenes from an Argument
I’ve perused the argument transcript in Zubik v. Burwell (better known as Little Sisters of the Poor v. Burwell) and some of the press coverage. I’ve also looked at the press pictures and noodled over whose side I’m on—the grim-faced harridans demanding free contraceptives now, or the cheerful Little Sisters.
When Charles G. Koch, the chief executive officer of his family business, recently wrote an op-ed for the Washington Post saying he agreed with Democratic presidential candidate Bernie Sanders that our economic system is “often rigged to help the privileged few,” it raised eyebrows even among the company-town’s power structure.
The online version was absolutely swamped with comments. Almost all of the commenters agreed about the evils of crony capitalism but most of them unfairly attacked Koch as hypocritical for being a capitalist himself. The examples he presented of Koch Industries’ opposing government subsidies that could have advantaged its business counted for exactly nothing. Pretty tough to crack the capitalist stereotype even when the capitalist supports one of the Left’s core precepts.
Last week, I visited Boston College for a discussion of the Supreme Court’s recent decisions. Herewith an abbreviated version of my remarks. Comments etc. most welcome because the thoughts (some old, some new) are embryonic: I’m working on a more serious, grown-up presentation.
We are living in an age of Executive Federalism. That form of government has some deeply disturbing features, including several that should prompt a judicial response. So far, the Court has given no indication that it has a clue.
Even after the Supreme Court’s lamentable decision in King v. Burwell, litigation over the Affordable Care Act and the administration’s creative implementation of the statute continues. Last week, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia held that the House of Representatives has standing to sue the executive (more precisely, Secretaries Burwell and Lew) over their decision to implement an ACA program with unappropriated funds. While it’s certainly a good thing to keep this excretion of a statute in litigation, from here to eternity, there are reasons to be nervous about Judge Collyer’s ruling.
Princeton University Press had just published a new paperback edition of my book, Accelerating Democracy: Transforming Governance Through Technology. It argues for using the tools given by our new computational technology to help democracy adapt to our accelerating rate of social change.
The basic insight of the book should be congenial to friends of the classical liberal tradition in political thought. It is to deploy decentralized mechanisms that modern technology makes possible to improve self-government. For instance, the internet greatly facilitates betting pools, called information or prediction markets, which permit people to bet on the occurrence of future events. Such markets already gauge election results more accurately than polls. If legalized and modestly subsidized, they could also foretell many policy results better than politicians or experts alone. We could then better predict the consequences of changes in educational policy on educational outcomes or a stimulus program on economic growth. In short, such markets would provide a visible hand to help guide policy results. Unfortunately, while such markets are a public good, our government now impedes them at every turn.
The internet today also encourages dispersed media like blogs to intensify confrontations about contending policy claims.
It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
I spent most of my post-King yesterday trying 1) to suspend disbelief; 2) suppress laughter; and 3) explain this to my kids. Epic fail at all fronts. My hunch, or at any rate my fear, is that this will turn out very badly for the Chief—an honorable man, and a capable jurist who really should know better.