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November 10, 2014

Death by Typo. "It now appears possible that the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an equally obvious typo."

By Paul Krugman

My parents used to own a small house with a large backyard, in which my mother cultivated a beautiful garden. At some point, however — I don’t remember why — my father looked at the official deed defining their property, and received a shock. According to the text, the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base.

On examination, it was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language. After all, it would have been ludicrous and cruel to take away most of my parents’ property on the basis of sloppy drafting, when the drafters’ intention was perfectly clear.

But it now appears possible that the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an equally obvious typo. And if you think this possibility has anything to do with serious legal reasoning, as opposed to rabid partisanship, I have a long, skinny, unbuildable piece of land you might want to buy.

Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. But the fact that the suit is ridiculous is no guarantee that it won’t succeed — not in an environment in which all too many Republican judges have made it clear that partisan loyalty trumps respect for the rule of law.

To understand the issue, you need to understand the structure of health reform. The Affordable Care Act tries to establish more-or-less universal coverage through a “three-legged stool” of policies, all of which are needed to make the system work. First, insurance companies are no longer allowed to discriminate against Americans based on their medical history, so that they can’t deny coverage or impose exorbitant premiums on people with pre-existing conditions. Second, everyone is required to buy insurance, to ensure that the healthy don’t wait until they get sick to join up. Finally, there are subsidies to lower-income Americans to make the insurance they’re required to buy affordable.

Just as an aside, so far this system seems to be working very well. Enrollment is running above expectations, premiums well below, and more insurance companies are flocking to the market.

So what’s the problem? To receive subsidies, Americans must buy insurance through so-called exchanges, government-run marketplaces. These exchanges, in turn, take two forms. Many states have chosen to run their own exchanges, like Covered California or Kentucky’s Kynect. Other states, however — mainly those under G.O.P. control — have refused to take an active role in insuring the uninsured, and defaulted to exchanges run by the federal government (which are working well now that the original software problems have been resolved).

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges. 

As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. Furthermore, the consequences if the suit were to prevail would be grotesque. States like California that run their own exchanges would be unaffected. But in places like New Jersey, where G.O.P. politicians refused to take a role, premiums would soar, healthy individuals would drop out, and health reform would go into a death spiral. (And since many people would lose crucial, lifesaving coverage, the deaths wouldn’t be just a metaphor.)

7 comments:

  1. Health care reform needs to go into a death spiral. I can't afford to pay for other peoples pregnancy and drug rehab.

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  2. Please note this article and video featuring the architect of Obamacare.:
    http://marketsanity.com/obamacare-architect-lack-transparency-key-fooling-stupid-americans/

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  3. Marsha ignorance is bliss only if your quiet about it.

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  4. Krugman disingenuously tries to pass off Obamacare as "reform". In reality it was one of the biggest corporate giveaways in history, forcing citizens to buy something they already couldn't afford from the bloated and corrupt Medical-Industrial Complex. It was the advent of "health insurance" which began to run up medical costs, and Obamacare simply took the country to the illogical extreme of that fundamentally wrong direction. Real reform would be going back to the affordable fee-for-service which we had until the sixties.

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  5. Apparently the writer of this has never heard of Jonathan Gruber.

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  6. If it was truly a "typo", one would think that little "typo" would have been quietly amended somewhere between March 2010, and December 2010 while the laughingstock-in-chief had his party in control of the House and the Senate and could have easily ram-rodded such an amendment through.



    Otherwise, it appears that the legislative monument to the most transparent administration ever (Obamacare) exists exactly as the legislative machine intended it. It is quite a gift to the insurance industry with those insanely large deductibles.



    Yes, perhaps more people are insured, yet so many of those newly insured will pay higher premiums and never collect a dime due to the new deductibles. Perhaps Krugmancare would work as a name for that little scenario.



    Monument, millstone, it's all the same.....

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  7. Since Krugman is such a stickler for abiding with drafters' intentions, how about the intentions of the drafters of the U.S. Constitution? Where in the Constitution is the provision giving the federal government the power to regulate healthcare or much of anything else? The purpose of the Constitution was to clearly and narrowly define the new federal government's powers. Powers not allowed were prohibited. Upwards of 99% of today's federal government's activities are prohibited by any rational understanding of the words in the Constitution and the background of its drafting.

    Only the fevered imaginations of black-robed bureaucrats are capable of finding powers in the Constitution which simply are not there.

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