John Roberts saved Obamacare again – and used Antonin Scalia's words to do it
Scott Lemieux
http://www.theguardian.com/commentisfree/2015...alia-words
The plaintiff’s arguments in King v Burwell were more laughable than the conservatives’ poorly-reasoned dissent
Associate US supreme court Justice Antonin Scalia may have earned chuckles with his dissent, but Chief Justice John Roberts deserves accolades for his reasoning. Photograph: Donald Traill/Invision for Moet Hennessy
Thursday 25 June 2015 14.35 EDT Last modified on Thursday 25 June 2015 15.46 EDT
For all the time and money that fanatical opponents of providing health care to the uninsured poor and middle class have poured into their legal struggle against President Barack Obama’s signature domestic policy achievement, the Affordable Care Act (aka “Obamacare”),they’ve now failed twice to achieve their ultimate objective. Thursday, in a 6-3 vote, the US supreme court refused the opponents’ invitation to willfully misread the law to take health care away from millions of people.
Showing a legal craftsmanship that has too often been absent from his major opinions, Chief Justice John Roberts calmly obliterated the latest challenge to the ACA, providing a model of how to properly read a statute. (Hint: if your method of statutory interpretation shows that Spain was invaded by the “Moops”, you’re doing it wrong.)
Roberts’ opinion simply stated what should have been obvious: Congress anticipated that at least some states would not establish their own health insurance exchanges, authorized the federal government to establish exchanges on their behalf, and did not intend for this federal backstop to fail. “Congress passed the Affordable Care Act to improve health insurance markets” concluded the chief justice, “not to destroy them.”
Opponents to the law had argued the opposite: resting on a single phrase of the statute taken out of context, they argued that, although the law created exchanges that allow people not covered by their employer to purchase insurance, and provided the non-affluent with subsidies to help them purchase that insurance, people in states that didn’t establish an exchange who purchase their insurance through a federal exchange shouldn’t get the subsidies at all, possibly making their insurance unaffordable.
As Roberts’s opinion carefully explains, however, the plaintiffs’ claim was plainly wrong when the provision is read in the context of the statute as a whole. Roberts observed that, “State Exchanges and Federal Exchanges are equivalent – they must meet the same requirements, perform the same functions, and serve the same purposes.”
If the court had accepted the theory of the law’s opponents, Roberts wrote, no one utilizing a federal exchange would qualify for a subsidy, “But the Act clearly contemplates that there will be [subsidy-] qualified individuals on every Exchange” even if the law doesn’t spell it out to its opponents’ satisfaction.
Even the court’s dissenters in this case once understood that Congress wouldn’t establish federal exchanges if they wanted them to fail – when it was politically convenient for them to understand it.
Thursday’s majority opinion, in observing that it is “implausible that Congress meant the Act” to establish federal exchanges that wouldn’t work, cited the joint dissent written by Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in NFIB v Sebelius – the first case the court heart on the ACA –which assumed that the subsidies would be universally available. Kennedy was at least consistent in his assertion that subsidies would be available to all; the other three dissenters in Sebelius changed their interpretations in this case because their objective is apparently not to construe the statute fairly, but to inflict the maximum amount of damage to
Justice Scalia’s histrionic, protesting-too-much dissent provides plenty of evidence that his legal reasoning gave way to his political positions. Attempting to answer the question of why Congress would go to the trouble of designing a federal backstop that was designed to fail, Scalia asserted that, without the subsidies, the “the individual mandate [would continue] to encourage people to maintain coverage, lest they be ‘taxed.’”
This is simply nonsense: in many cases, because Americans with low incomes aren’t mandated to carry insurance if it represents a financial hardship, without the subsidies, many people wouldn’t carry insurance nor be taxed for not doing so.
As he did at oral argument, Scalia also showed himself as embarrassingly out of touch with American politics circa 2015. “The Court predicts that making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there,” wrote Scalia. “If that is so, however, wouldn’t one expect States to react by setting up their own Exchanges?”
Apparently, Scalia intends this question to be rhetorical; but the actual answer is Of course we would not. We’ve already seen more than 20 Republican-governed states turn down large amounts of free federal money that could be used to expand Medicaid, inflicting significant human as well as economic costs on their states.
The idea that these states would act to cooperate – or simply in the best interests of their citizens – this time is absurd. And whatever Scalia thinks, Congress didn’t think they would, either, and established a federal backstop exactly for that contingency.
Many feared that, even if the court upheld the subsidies, it would do so by deferring to the IRS because the statute was ambiguous; such a ruling would have left open the option for a future Republican administration to wreck the federal exchanges.
Thurday’s opinion, however, seems to foreclose that possibility: since the court found that the ACA clearly makes subsidies available to those using the federal exchanges and that and Congress did not delegate to the IRS, a future Republican administration will not be able to wreck the exchanges unilaterally by simply altering the IRS’s interpretation of the statute.
Conservatives will undoubtedly charge Roberts with being a closet liberal, but he isn’t: he’s just someone who believes that the Affordable Care Act should be interpreted in a way that makes sense, not distorted to achieve the goals of its opponents. And, in this case, his decision to prioritize law over politics will actually save lives. Not bad for day’s work.
