When the Affordable Care Act was passed underwriters faced a difficult problem. Neither the number nor the sickness of those who enrolled through its exchanges could be predicted with reasonable actuarial confidence. And Congress put many restraints in place - mandatory coverage, limits on administrative overhead, etc. So it guaranteed - for three years - that the federal government would pick up the shortfall.
But the Republican-led Congress refused to foot the bill. With no money appropriate the government refused to pay.. Several insurers, including Maine Community Health, sued. The Tucker Act they said promised that the government would meet its obligations. This one was stated plainly in a statute.
Yesterday the Supreme Court in an opinion by Justice Sonia Sotomayor, ordered the United States to pay the $12 billion owed. Only Justice Samuel Alito dissented. He cannot bear the thought of implying a cause of action not expressly created by statute.
Justice Sotomayor concluded with a ringing bit of originalist rhetoric:
The Government should honor its obligations. Soon after ratification, Alexander Hamilton stressed this insight as a cornerstone of fiscal policy. “States,” he wrote, “who observe their engagements . . . are respected and trusted: while the reverse is the fate of those . . . who pursue an opposite conduct.” Report Relative to a Provision for the Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander Hamilton 68Centuries later, this Court’s case law still concurs.
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