This morning, the Supreme Court handed down a decision in the case of King v. Burwell which maintains, contrary to the plain language of the law, subsidies are available to those who purchase insurance through federal health insurance exchanges set up for states which opted not to create their own. This doesn’t change the responsibility of Congress to repeal Obamacare.
Justice Scalia, joined by Justices Thomas and Alito, pointed to the farce of the majority’s ruling at the beginning of their dissent:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
Nevertheless, the White House is quite pleased the court has stepped in to plug yet another “crack in the dam” on behalf of the administration. President Obama proudly proclaimed, “The Affordable Care Act is here to stay.”
Less enthused are the millions of people across the nation paying more for their health insurance because of the laughably misnamed Affordable Care Act, as well as those who wish they could have kept their old plans, as the president falsely assured them they would.
The six justices in the majority—Roberts, Kennedy, Ginsburg, Breyer, Sotomayor and Kagan—relied on the puzzling reasoning that since the overall purpose of the law was to put people into insurance exchanges, a decision which struck down the availability of subsidies for those who purchase insurance through the federal exchanges would be contrary to legislative intent and thus undesirable.
This ignores the fact the law was written precisely to use federal monies in the form of tax subsidies to their residents to induce states to establish their own exchanges. If the law failed in that respect, it is not an excuse to illegally patch that flaw through federal interference.
Chief Justice Roberts—who was a surprise vote in favor of the “individual mandate” in 2012—gave a less surprising, but nonetheless galling, admission that his court was ignoring the clear meaning of the legal text:
In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.
It’s a clear-cut case of the Supreme Court being willing to bend the law backwards to preserve Washington’s involvement in the insurance market and marks the second time in three years the Roberts Court has creatively rewritten history to preserve President Obama’s signature legislative achievement. As Justice Scalia derisively noted: “We should start calling this law SCOTUScare.”
It would have been heartening to see the court acknowledge the administration’s lawless behavior, but nothing has changed in the long run. Even if the court had applied the clear meaning of the law and declared the administration’s subsidies illegal, it still would fall to Congress to repeal Obamacare. This decision has redoubled that responsibility.
The only thorough dismantling of Obamacare can come legislatively. If, as the Supreme Court majority stated, “in every case we must respect the role of the legislature,” then today’s ruling serves as a signal to every senator and representative who wants to give Americans cheaper health care with more options and less bureaucracy: It’s up to you now.
