This morning, the US Supreme Court handed down its decision in Carter v. Burwell, otherwise known as the Obamacare decision. Chief Justice Roberts wrote for the majority, and ruled against the plaintiffs in the case. Essentially, the arguments made by the Obama administration won. And great rejoicing was heard throughout the land.
Actually, that’s kind of true, the great rejoicing part. Oh, sure, there were ill-tempered rumblings in the tiny village of Scaliaville, and presumably the twin cities of Thomas and Alito were less than entirely gruntled. But the muted response from the GOP suggests the corner into which a different decision would have painted them. Ten million people are currently enrolled in the Affordable Care Act insurance policies available to them, most of whom would, in all likelihood, have lost their coverage. Republicans in Congress would have had to come up with some alternative plan, some new ideas, which they frankly don’t have. Republican Presidential candidates can go back to safely denouncing ‘Obamacare’ without facing unpleasant consequences (until they have to face the general electorate, which is coming around on the ACA). Democrats are breathing a sigh of relief right now, because the ACA, like Keanu Reeves, has dodged another bullet. Listen carefully: you can hear John Boehner’s quiet ‘whew.’
Here’s what King v. Burwell is about, best I can understand it. (And, as always, remember, I’m not a legal expert in any sense. Not a lawyer, not a law professor, just a playwright with wifi, and an addiction to SCOTUSblog). The way Obamacare works is that people who couldn’t have previously have afforded health insurance were able to receive a federal subsidy to help pay for it in a health care exchange. States were supposed to set up those exchanges, which are sort of on-line insurance stores. But in fact, 34 states didn’t set them up. Another provision of the ACA allows the federal government to set up a national exchange, which is, in fact, where most people got their policies. But the bill was awkwardly worded. It’s possible to read one small section of the bill as saying that the only people eligible for subsidies were those who bought their insurance in state exchanges. Here’s the relevant passage, from Section 36 B of the ACA: subsidies could go to those who purchased insurance in “an exchange established by the State.” Well, did that mean that people who bought theirs in the federal exchange were therefore not eligible for the subsidy? That was what the plaintiffs argued.
Right at the beginning, Chief Justice Roberts tells us his approach:
If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words in their context and with a view to their place in the overall statutory scheme.
I mean, obviously. I’ll grant that the statute’s language was unclear. But could Congress seriously have intended to limit so drastically the scope of the subsidies? Isn’t it obvious that someone just screwed up? The whole point of the bill is to allow people who couldn’t otherwise afford it to get insurance. Obviously, subsidies had to be available to everyone. The kind of exchange, state or federal, you bought it from is clearly unimportant and irrelevant.
What Roberts gave us, therefore, is a common sense reading of the statute. What’s the bill trying to accomplish? If the meaning of one passage is unclear, go back to basics. Assume that Congress didn’t stick five words in the middle of a big, important bill that would undermine everything else it’s meant to accomplish. Here’s his conclusion:
Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.
Roberts did adopt a ‘more in sorrow than in anger’ tone to point out what he called the bill’s ‘inartful drafting.’ “The Act does not reflect the type of care and deliberation that one might expect of such significant legislation,” wrote Roberts, an elegant prose stylist saddened by awkward phrasing by a lesser writer. Frankly, I wish he had taken Congress more sternly to task. There’s no reason why five poorly chosen words in a too-hastily drafted law should have jeopardized the health coverage for millions of Americans.
Roberts is generally described as a ‘conservative,’ and the word seems apt. But his final two paragraphs give us a window into the kind of conservative he aspires to be.
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.
In contrast, Scalia’s temper tantrum of a dissent reveals his own brand of conservatism. His is the kind of textual literalism that allows for not the tiniest ambiguity or context.
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. This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money. Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved. We should start calling this law SCOTUScare.
Accusing Roberts of knee-jerk partisanship, Scalia reveals his own blinkered partisanship. By refusing to look at a strangely worded passage in context–and by refusing to acknowledge the possibility of simply human error in drafting a statute–Scalia demonstrates yet again how bizarre his understanding of collegiality has become. Would he seriously have deprived millions of fellow citizens of health care coverage (and the attendant protections against medical emergencies or serious accidents) simply out of pique, or because one phrase in a 20, 000 page bill was ambiguously worded? Apparently so, sadly.
Still, the right thing happened, and for the right reasons. Whew indeed.