Once more it's back to the drawing board for Obamacare -- or maybe just the ouija board that the
All is uncertain at the moment because the circuits on this elaborate gizmo ironically styled the Affordable Care Act (talk about an oxymoron!) seem broken. They keep shooting sparks at each other. A panel of judges on one circuit court of appeals, the Fourth, has let Obamacare stand, if by only the narrowest of margins, 2 to 1. While another panel of judges, this one on the D.C. circuit, ruled against Obamacare by the same 2-to-1 vote -- only to have its decision vacated while the entire circuit court gets a crack at this president's Signature Accomplishment and general headache. But that may never happen because, in the meantime, the Supremes have decided to hear the case, King v. Burwell, that is to determine Obamacare's fate. Again.
Obamacare just keeps coming back like a bad penny, or rather a bad trillion dollars, since this administration's take-over, shake-up, or just continual meddlin' with the country's health-care system affects a sixth or so of the whole American economy. Which makes it a matter of some importance to determine whether Obamacare is sound law or just an unreasonable facsimile thereof.
For now another "settled question" at law doesn't seem to have been settled at all. And may never be. For nothing is settled till it's settled right. And whatever Obamacare is, the greatest innovation in medicine since penicillin or the greatest step backward since bloodletting, the one thing sure is that its legal fate is still unsettled. And unsettling.
This time the
Maybe you have to have a fine legal education to understand that argument, because to us naifs who still believe words mean what they say -- a belief that clearly disqualifies us for the federal bench -- the words are clear enough. But not for government work.
The ever cooperative
The legal spotlight now is on Obamacare, and not for the first time. For the country's
Or as the redoubtable
But that fog of controversy Ms. Pelosi mentioned has never lifted, and probably never will so long as Obamacare itself is generating questions. Which explains why it's become the legal equivalent of a fog machine. This time one of those questions has reached the country's highest court -- once again. That happens when great questions aren't really decided but just put off. Which is pretty much what the current chief justice succeeded in doing when he let Obamacare survive this far.
Furious at first, FDR threatened to pack the court, enact his "signature accomplishment" all by himself, and generally rule by executive order. But once all the dust had settled, an accommodation was reached: The best parts of the old act -- like its protections for the rights of organized labor -- were passed separately, and the worst, like the gigantic public-private trust it created to run the economy, was allowed to die. And freedom to ring.
All of which sounds like the kind of compromise this current Democratic administration and this welcome new, Republican-led Congress need to work out where Obamacare is concerned: Keep its more desirable features, like letting young people stay on their parents' health insurance much longer, and let its worst expire -- like turning American health care into one big trust dominated by the country's health and insurance industries.
The country's chief justice missed an historic opportunity when he saved Obamacare once before, but that opportunity is knocking again. Thanks to the chief justice's decisive decision last time it came up, Obamacare has managed to survive. So far. But stay tuned. Because the only thing sure about the great unraveling of Obamacare is that it is To Be Continued.