The insurance industry’s decision to urge the Supreme Court not to throw much of the nation’s health care system into chaos, according to a key behind-the-scenes figure in a lawsuit asking the justices to do just that, is similar to Nazi Germany’s campaign of mass murder against Jews, gay people, Romani and other individuals deemed undesirable by the Third Reich.
The comparison between support for the Affordable Care Act and the Holocaust was posted by a conservative law professor and activist named Michael Greve on a libertarian legal blog. Greve, a professor at George Mason University’s law school, previously served as chairman of the conservative Competitive Enterprise Institute (CEI), where he remains a board member. According to CEI’s website, the organization that Greve used to chair is “coordinating and funding” King v. Burwell, a case currently pending before the Supreme Court that is likely to strip health insurance away from at least 13 million people if it succeeds.
Greve made his Holocaust comparison in a blog post criticizing various arguments raised by groups that filed amicus briefs explaining why the justices should not take health care away from millions of people. Though Greve spends fairly little time discussing a brief filed by America’s Health Insurance Plans (AHIP), the leading health insurance industry group, he does spend a paragraph analogizing AHIP’s decision to back the Affordable Care Act to the network of railroad cars and death camps that Nazi Germany used to conduct much of the Holocaust:
Numerous briefs come from hospital associations, doctors’ groups, and of course America’s Health Insurance Plans. By helping the ACA over the hurdle, AHIP signed its corporate members’ death warrant in exchange for the individual mandate, risk corridors, and a few other placebos. AHIP had the railroad cars to the camps neatly lined up; now, some plaintiffs are messing—after NFIB, a second time—with the tracks: how dare they.
“NFIB” refers to National Federation of Independent Business v. Sebelius, the 2012 case asking the Supreme Court to repeal Obamacare, where the Court instead upheld most of the law. ThinkProgress discovered Greve’s piece comparing Obamacare to the Holocaust after a link to it was retweeted by Jonathan Adler and Michael Cannon, two other key figures in the King litigation.
This is hardly the first time that Greve has used overblown rhetoric while talking about the Affordable Care Act — although we are not aware of another instance where he compared Obamacare to one of the greatest acts of state-sponsored evil in human history. At a 2010 panel where another panelist presented an early version of the legal theory behind King, Greve spoke of destroying the law that enabled millions to obtain health insurance as a matter of such superseding importance that it must be achieved by any means necessary:
This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.
Taken together, Greve’s two statements about the Affordable Care Act go a long way towards explaining the motivations behind the King lawsuit. The plaintiffs’ arguments in King lack much legal support. They ask the Court to read a just a few words of the Affordable Care Act out of context to cut off tax credits intended to help people pay for health insurance in most of the country, when the statute as a whole does not support this interpretation. Just as importantly, the King plaintiffs ask the Court to ignore its own previous decisions, which establish that “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”
The King plaintiffs have also been called out for misrepresenting the history of Obamacare’s passage. One of their central claims, for example, is that former Senator Ben Nelson (D-NE) insisted that the law be designed in a counterintuitive way that denies tax credits to the residents of many states. But their brief offers no evidence to support this claim beyond a citation to a news article discussing an irrelevant policy debate, and Nelson recently explained that he “always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well.”
In a must-read article published Thursday, the New York Times‘s Linda Greenhouse lays out how the justices’ apparent willingness to allow themselves “to be recruited into the front lines of a partisan war” endangers the legitimacy of the Supreme Court itself. Greenhouse explains that a decision against Obamacare in King would not simply depart from accepted principles of statutory interpretation, it would depart from principles long-embraced by the Court’s most conservative members. She bolsters her argument with quotes from Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, as well as a citation to one of Justice Samuel Alito’s most important federalism opinions. “To reject the government’s defense of the law,” Greenhouse explains, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”
And if the justices are willing to suspend their own principles to achieve a partisan end, that raises profound questions about why the one unelected branch of government should have this power in the first place.
Under normal circumstances, it would be simply extraordinary for a litigant to ask the Supreme Court to, as Greenhouse suggests the King plaintiffs do, tear down its own institutional legitimacy for the sake of a single case. It would be even more extraordinary to imagine that the justices themselves would be willing to do so. But, at least according to Greve, this is not a normal circumstance. If you truly believe that extending health insurance to millions of Americans is an evil worthy of comparison to the Holocaust, then the Supreme Court of the United States’s moral and intellectual credibility — the sole currency the justices can bring to bear when they ask the nation to obey their decisions — is a small price to pay for the sake of what Greve describes as “political hygiene.”