(Bloomberg View) — The Patient Protection and Affordable Care Act — the ACA — is being subjected to judicial torment. The latest agony is last week's ruling by a federal judge that the law failed to appropriate funds needed to help cover low-to middle-income people.
The case, brought by Republican members of Congress, shouldn't have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn't a matter for the courts. It's also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it.
But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party. When the Supreme Court struck down the first New Deal in 1936, it did it in essentially one swift blow — after which Frank Delano Roosevelt retooled and passed the second New Deal.
The law that created Obamacare in 2010, in contrast, has now been subject to five major judicial attacks. This is not the way the separation of powers is supposed to operate.
You can be forgiven if you thought that legal challenges to Obamacare were over and are mystified about the current one. What you should know is that, like several of the other challenges before it, the current case arises from ingenious lawyers going over the massively long statute with a fine-toothed comb, trying to find drafting errors or other inconsistencies that would render the law unable to function.
In this instance, the target is Section 1402, which provides for reimbursement of "deductibles, coinsurance, copayments, or similar charges" for patients in the medium-priced silver-tier plans envisioned by the act. The way the provision is supposed to work is that the insurance company is ordered to take care of these copays, and then is supposed to get the money back from the government.
The congressmen who challenged the law claim that there's no provision in the law specifically appropriating money for this reimbursement. They admit that the law provides for an indefinite, open-ended appropriation for reimbursement of insurance premiums, described in Section 1401 of the act. But they say that the absence of an express provision for 1402 means that part of the law is inoperative.
In the real world, there's little doubt that this was an oversight by the drafters. The law was produced and passed in haste, and drafting errors are to be expected. Courts don't normally throw out parts of laws over technical mistakes when the purpose of the provision is clear.
The federal government dealt with this problem by relying on the provision that clearly appropriates funds for premium reimbursement, reasoning with some plausibility that the two forms of reimbursement are interconnected.
