The idea of a “glitch” in the ACA should not be so readily repeated. Instead, it should be handled as a crafty piece of conservative spin.
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For all the uncertainty surrounding the 2016 campaign, this much is already clear: The Supreme Court will be at the center of that election in a way rarely seen in our nation’s history. Between June 2015 and June 2016, the court is likely to issue rulings on marriage equality, health care, abortion, and voting rights, all of which will be chewed over endlessly by both parties’ presidential candidates. Meanwhile, with four justices in or approaching their 80s, the court’s future will itself be up for grabs. It’s no exaggeration to say that the Supreme Court will be 2016’s most consequential issue, and that the party that makes the best case for what the court should be will be on its way to victory.
There is no “will of the majority” exception to the Constitution. Unfortunately, the opinion by U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton upholding the discriminatory marriage laws of Michigan, Ohio, Kentucky and Tennessee attempted to create one, exalting majority will over the Constitution’s promise of liberty and equality. Sutton’s opinion is chock full of legal errors, but its most basic is a faulty understanding of majority rule and federalism. The Constitution protects equal rights for all, and gives to the courts the job of preventing oppression of minorities at the hands of the majority. Leaving constitutional safeguards to the voters would place our most precious constitutional guarantees in jeopardy and subject to the whim of majority rule.
The drafters of the Fourteenth Amendment may not have been specifically thinking of gay and lesbian couples when they spoke of the need to ensure that the basic civil right of marriage was equally available to all. But the actual text of the Fourteenth Amendment’s guarantee of the “equal protection of the laws” is sweeping and universal. It protects all persons.
This particular brief was written by 18 state attorneys general in support of preserving subsidies for the ACA’s federal run exchanges, including 11 AGs from states that delegated management of their exchanges to Healthcare.gov. In it, they warned that a ruling against the exchanges would “deprive millions of low- and moderate-income Americans of billions of dollars in federal premium assistance needed to buy health insurance.” Among the signatories were the attorneys general from battleground states like Virginia, North Carolina, Pennsylvania, Iowa, New Mexico, and New Hampshire, as well as deeply conservative states like Arkansas and Mississippi. It’s a far more geographically and ideologically diverse show of support for affordable insurance through the exchanges than had surfaced to date.