We were asking for the wrong thing all along.
For years, conservatives bemoaned “activist” judges who did not merely interpret laws, but created new law out of thin air with their decisions. We called for judges who would defer to legislatures rather than “legislating from the bench.”
We didn’t envision the day the Supreme Court would go so far in its deference to Congress as to come all the way back around toward … legislating from the bench. But for the second time, that is how the court saved Obamacare from itself.
Thursday’s 6-3 ruling upholding the law’s subsidies to people buying health insurance on the federal exchange — rather than an exchange, as the law puts it, “established by the state” — was not so much unexpected in its result as disappointing in its reasoning, if that’s the right word.
What Chief Justice John Roberts essentially wrote in the majority opinion is this:
Congress wanted to improve health insurance. The way it chose to improve health insurance requires subsidies, because the Affordable Care Act made health insurance more “affordable” by jacking up premiums and then providing tax credits to make up the difference. Therefore, Congress couldn’t have meant to subsidize purchases only in exchanges “established by the state” — even if that’s what it wrote — because that wouldn’t improve health insurance. If Congress didn’t make that clear, that’s because the law was written hastily behind closed doors and then rammed through the Senate without 60 votes.
(Yes, he more or less wrote that last sentence.)
Not even addressed in Roberts’ ruling is the possibility — revealed as reality in 2012 by Jonathan Gruber, a health-policy expert who helped Congress create the law — that the distinction between state and federal exchanges was intentional, an incentive for states to save the federal government from the hard work of building an exchange. Justice Antonin Scalia, in a brutal takedown of Roberts’ reasoning, mentions this possibility. Roberts simply ignores it.
If this is what Roberts meant when he said, during his confirmation hearing, that his job is “to call balls and strikes,” he should go to more baseball games. I’ve never seen an umpire say, “That fastball was outside, but I’m pretty sure a curveball would have broken back over the plate. Strike!”
This past week’s ruling relies on the same sleight of pen as Roberts’ 2012 Obamacare ruling. Then, you may recall, the majority found the “penalty” Congress created for those who do not purchase health insurance was instead something Congress studiously avoided calling it: a tax.
The latest ruling’s effect on insurance may be small: Congressional Republicans had indicated they were prepared to keep the subsidies flowing. Ultimately, if Obamacare fails it will be because the parts the administration has so far been afraid to implement — e.g., the employer mandate — cause trouble, and because premiums and subsidies rise unsustainably as enrollment by relatively young and healthy Americans remains too small.
The ruling’s effect on the law could be more dramatic, if it signals the court will now do whatever it takes to uphold statutes.
Or maybe, as Scalia wrote, there is only a narrower but “overriding principle of the present court: The Affordable Care Act must be saved” — and not all laws will be so favored.
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