This Seinfeld joke goes back to about one year ago when the Supreme Court decided it would take up the ridiculous case of King v. Burwell. The case proclaimed that because the text of the law read that insurance subsidies for Obamacare could only be applied in exchanges “established by the State”, customers from states that didn’t set up their own exchanges (mostly due to recalcitrant Republican Governors and Republican-controlled state legislatures trying to stop the law from being implemented) and relied on the Federal Exchange could not get the subsidies they needed. In the Seinfeld episode, George Constanza gets into a fight with “Bubble Boy” while playing Trivial Pursuit, because while the card said “Moops” (the question was “Who invaded Spain in the 8th century?”), the answer was clearly “Moors” and the card had a misprint (video provided below).
While Salon’s Maloy was the first columnist to point out this uncanny similarity on Wednesday, July 23rd of last year, Jonathan Chait also noticed the ridiculous “Moops”-like argument a week later. While it is nice to be able to joke and laugh about this now, this ruling could have been very ugly. There were over 6 million Obamacare users who rely on the Federal Exchange for their subsidies, and their plans could have easily been in jeopardy. This chart, provided by Huff-Post, approximates how many people in each state that did not set up their own exchanges would have lost their subsidies and thus their coverage. And it’s not like Republicans and conservative pundits and columnists alike knew that people could die as a result of this ruling. Michael Strain, who works for the American Enterprise Institute, wrote an op-ed in The Washington Post back in January with the headline “End Obamacare, and people could die. That’s okay.”
Getting back to the title of this blog, Chief Justice Roberts and Justice Kennedy clearly did the right thing here. They knew the case was a desperate Hail Mary play by opponents of the law. In fact, Jordan Weissmann of Slate’s Money Box selected two very appropriate paragraphs from the Majority ruling indicating that Chief Justice Roberts knew he was doing the right thing:
“In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined– ‘to say what the law is.’ Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of this legislation demands a fair understanding of the legislative plan.
Congress passed the Affordable Care Act to improve health insurance markets, not destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”
One could argue that in addition to the 6 million Obamacare users who would have inevitably lost their coverage, the biggest winners are Congressional Republicans. If the subsidies stopped, they would have actually had to do something about it. And we know how this Congress feels about being productive (still waiting on that “fix” from last year’s ruling undoing Section V of the Voter Right’s Act). So where do we go from here? Will Republicans finally admit defeat and give up trying to undo the ACA? Of course not. Congressional Republicans are already planning on using the Reconciliation process to repeal the ACA (ironically, the very same process that got the ACA passed in the first place). Fortunately, for fans of the ACA like myself, the chances of this law being repealed as long as Obama is still President are zero. However, should a Republican win the presidential race in 2016, we could be looking at a very different outcome in the year 2017.
You can view the “moops” clip from Seinfeld here: