The Argument That Wasn't

Document Type

Article

Publication Date

7-2-2015

Publication Title

Health Affairs

Keywords

healthcare, health insurance, Affordable Care Act (ACA), Obamacare, Justice John Roberts

Abstract

Last Christmas, I spent a somewhat panicky inter-semester break writing an amicus brief for King v. Burwell. I was worried that five Supreme Court justices were going to be too tempted by the plaintiffs’ legalistic interpretation of Obamacare’s text, despite ample evidence beyond the text that Congress never intended to deprive citizens in 34 states of health insurance subsidies.

In a seminar I taught at Boston University, one of my students had proposed a legalistic version of the common sense point that Congress could not possibly have intended the plaintiffs’ result—a legalistic argument that could be fatal to the plaintiffs’ case but that the government could not make—and I decided to spend my break writing and submitting it.

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DOI

10.1377/forefront.20150702.049112

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