Shall the fabric be unwoven?

BARACK OBAMA spoke before an assembly of health-care administrators Tuesday in Washington, DC, but his remarks were aimed squarely at the Supreme Court justices who are busily deciding the fate of the Affordable Care Act, better known as Obamacare.

"Five years in, what we are talking about is no longer just a law. It’s no longer just a theory. It isn’t even just about the Affordable Care Act or Obamacare," Mr Obama said. "This is now part of the fabric of how we care for one another. This is health care in America".

The issue before the court in King v Burwell is whether the text of the legislation must be strictly or loosely observed. As it is written, the law authorises the Internal Revenue Service to offer tax credits to Americans who buy health insurance on "exchanges", or online marketplaces, “established by the state.” Awkwardly, 34 states declined to set one up, despite an array of federal incentives to do so. So the feds stepped in to create marketplaces in these states themselves. This is where the trouble comes in. The law does not clearly authorise the IRS to issue tax credits to those who buy insurance on the federal exchanges. If these carrots vanish in 34 states, Obamacare will implode.

I’m inclined towards the view, shared by two federal courts, that the text of the legislation does not authorise tax credits for those who buy insurance on federal exchanges. I don't believe that this was an oversight. It was, I think, very much part of the law's strategy to induce states to establish exchanges. Advocates of Obamacare now deny this, and understandably so. Otherwise, Mr Obama made a very risky bet and lost in a decisive and humiliating way. In this (admittedly controversial) light, Mr Obama seems now to be asking the Supreme Court to fix his mistake and allow the IRS to exercise powers congress never granted—or to simply pretend that they actually were granted—on the grounds that too many people would suffer otherwise. "It seems so cynical," Mr Obama said "to punish millions with higher costs of care and unravel what's now been woven into the fabric of America.”

In an April column for Bloomberg, Noah Feldman, a professor of constitutional law at Harvard, said that the government's claims that the law implicitly includes subsidies for federal exchanges "seem forced". Instead, he suggests that the government should try to convince Justice Anthony Kennedy, the presumed swing voter, “that the ACA shouldn’t be read literally, as doing so would produce a disastrous and therefore unjust result." Justice Kennedy has shown himself open to adjusting the letter of the law when doing so leads to a more "equitable" result. "If the law is interpreted flexibly in accordance with equity," Mr Feldman says, "the Obama administration wins. If it’s read strictly, the administration loses."

Mr Obama appears to be taking this tack. Yet I wonder if he isn't hurting his cause by overstating his case. The president leans very forcefully on the contention that Obamacare is "no longer just a law" because it "is now a part of the fabric of how we care for another". This sounds, to my ear, like a rhetorical misstep.

Big entitlements, once they are well in place, are effectively impossible to repeal. Even small-government conservatives know they can’t touch programmes such as Social Security and Medicare. Mr Obama, it seems, fancies the idea that his pet programme has already reached this sort of exalted, untouchable status. But it hasn't. So it seems odd to ask the court to take this as a reason to leave it alone.

Obamacare is not as popular as its advocates had predicted. Nor is it working quite as well as its champions would have us believe. Premiums are rising, and are likely to rise further next year, which does not bode well for its future popularity. Should a Republican happen to become president in 2016, Obamacare as we know it is probably doomed. Large parts of it may end up being repealed and/or replaced. So Mr Obama's suggestion that the ACA has achieved locked-in, quasi-constitutional, "fabric of America" status is more an expression of hope than fact. Mission accomplished!

Will Obamacare cut costs?

In any case, claiming that a programme is no longer just a law seems to suggest either (a) that it has evolved out of the purview of merely legal authorities, or (b) that the legal authorities ought to decide the fate of this more-than-a-law according to moral rather than strictly legal principles. This would aggravate me if I were a judge. Justice Kennedy has shown himself sympathetic to a legal principle that says it is okay to deviate a little from the letter of the law when doing so would avoid serious injustice or harm. Wouldn't Mr Obama do better to affirm that taking measures to avoid inequity is sound jurisprudence, rather than possibly slighting the justices by implying that Obamacare now transcends their jurisprudential ambit?

Ultimately there is something rhetorically odd about Mr Obama's implicit claim that Obamacare ought to get special consideration or deference from the courts simply due to the alleged fact that it is so thoroughly entrenched. For the question before the court is precisely whether or not the government has been weaving "the fabric of how we care for one another" with illegal tax subsidies and penalties. If the government's case for the legality of the subsidies were stronger, it wouldn't be necessary to emphasise just how inextricably they've been woven into the fabric of American life. It may well be true in this case, and it may be best, all things considered, for the court to take steps to avert catastrophe. That said, the idea that courts ought to find a way to accommodate illegal programmes when striking them down would cause too much trouble is hardly appealing as a general principle.

The fact that Mr Obama has resorted to such a thoroughly "fabric"-based case for the preservation of Obamacare underscores the failure of Republicans to advance a credible alternative. If the GOP had settled on a serious replacement—and it's not as though they haven't had the time—then the court would be free to decide King v Burwell on the merits, untroubled by the possibility that the American health-care system might be left a chaotic mess. The Republicans' failure to assure the public, and the court, that it would be no big deal should Obamacare fail has left open the hope that a black-robed angel might hear Mr Obama's prayer.