Obamacare? No, This is Now SCOTUScare

Is it lawful to provide subsidies through exchanges created by the Secretary of Health and Human Services (HHS)? That was the question the Supreme Court was asked to decide, but chose to disregard it in order to answer a much different question: whether it is a good idea to provide subsidies in exchanges created by the Secretary.

The answer to the former question is simple. No. Section 1401 of the bill plainly says that tax credits can only go to taxpayers “covered by a qualified health plan . . . that was enrolled in through an exchange established by the State under Section 1311.” As you would expect, Section 1311 is the part of the bill that lays out rules for state-run exchanges, as compared to Section 1321, which deals with exchanges established and operated by the Secretary of HHS.

No matter what you’ve read or heard, this was not a typo, but is instead one of the few soundly drafted pieces of the bill. The internally consistent language had a clear goal – to coerce the states into setting up exchanges for themselves in order to shift pressure and costs off the federal government.

Nevertheless, the Supreme Court, with Chief Justice John Roberts at the helm, ignored the words of the page in favor of the presumed intent of the drafters.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

Yuval Levin, writing for National Review, digs into the problem with this approach:

In effect, this is a version of the president’s argument: Obamacare is not so much a particular law as an overarching desire “to improve health insurance markets” and so if at all possible it should be taken to mean whatever one believes would be involved in doing so. From the beginning of its implementation of this statute, that Obama administration has treated the words of the statute as far less relevant than the general aim of doing what it thinks would improve health insurance markets, and today the Supreme Court essentially endorsed this way of understanding the law and suggested it is how judges should think about laws more generally too.

The result, is not only poor jurisprudence, but a deep blow to the rule of law. After all, Congress is elected by the public, who can use their votes to express their approval or disapproval with the words Congress puts to page and passes to law. But judges don’t answer to voters. And thus, to imbue them with the power to define the words on the page based on their own assessment of legislators’ intent, is to in essence make them a Supreme Congress. Scalia expresses the importance of this point in a withering dissent.

“This Court holds on the judicial power–the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct,” Scalia writes.

Well, that’s the power and prerogative they should hold.

Instead, the Court finds that the process and passage was flawed–it was written “behind closed doors” and passed with “limited opportunities for debate and amendment,” which resulted in a bill that “does not reflect the type of care and deliberation that one might expect of such significant legislation.” But rather than hold this against the authors,  the Court allows it to be their saving grace, essentially creating the space that the Court needed to step in and rescue the law from itself, the rationale being that Congress would not have wanted to “push a State’s individual insurance market into a death spiral.”

In so doing the Court sets aside the hubris of Congress, which assumed that Obamacare and its subsidies would be so popular that state governments would trip over themselves in an effort to set up their own exchanges, and replaces it with its own – that they can rewrite laws and set aside politics (and even ideology) to achieve an objective good. For that reason this bill is no longer the Affordable Care Act as passed by Congress, nor Obamacare as owned by the President. Instead, as Scalia laments, “We should start calling this law SCOTUScare.”

Obamacare has cleared a second major hurdle at the Supreme Court — but its troubles are far from over.

The law is still highly unpopular, and significant structural issues remain: Health insurance rates are rising, many people don’t have as much choice of doctors and hospitals as they’d like, some states continue to struggle with their exchanges, and 21 states still haven’t backed Medicaid expansion.

So while President Barack Obama can point to a two-time victory at the high court and the law’s historic increase of health coverage, his foes — including the Republicans jockeying for the 2016 ticket — can recite an alternative story. The fact that both realities are true — a red story that paints a grim picture and a blue version that has a much brighter hue — will make it hard to move on.

Read more: http://www.politico.com/story/2015/06/even-after-court-victory-still-no-easy-road-for-obamacare-119447.html#ixzz3eAcFFqG3

 “This would have been an opportunity to get some things right. We’re not going to have that opportunity now with President Obama in the White House,” said Sen. John Barrasso of Wyoming, who has been at the head of the repeal effort in the Senate. “We still have to fix health care. You cannot fix Obamacare.”http://www.nationaljournal.com/congress/republicans-stunned-by-the-supreme-court-plot-next-anti-obamacare-moves-20150625

Roberts was, in essence, expressing a criticism. “The Act does not reflect the type of care and deliberation that one might expect of such significant legislation,” he noted. But the very bad drafting of the ACA turned out to be its saving grace. Instead of reading the “established by the state” line literally, eliminating subsidies to federally established exchanges, he concluded that the line was ambiguous when taken in context. http://www.bloombergview.com/articles/2015-06-25/congress-s-sloppiness-saves-obamacare