Kyle Wingfield

Political commentary and opinion from The Atlanta Journal-Constitution's conservative blogger

Roberts sides with Supreme Court's liberal wing to uphold Obamacare subsidies


The Supreme Court has upheld Obamacare subsidies for people buying health insurance on the federal exchange. The vote was 6-3, with Chief Justice Roberts writing an opinion joined by the four justices on the court's "liberal wing" and Justice Anthony Kennedy.

The dispute in King v. Burwell was based on a single phrase: "established by the state." Here's where it comes from:

Obamacare provides for subsidies to help people buy health insurance if they earn between 100 percent and 400 percent of the poverty rate. These subsidies are, as the majority opinion in the case confirms, the only reason insurance can be described as affordable under the Affordable Care Act: The law's "individual mandate" to buy insurance only applies if doing so would consume no more than 8 percent of one's income. Not receiving the subsidies, Roberts wrote in regard to the citizens who sued the government in this case, "would make the cost of buying insurance more than 8 percent of their income." Thus, health insurance is not being made affordable because the cost is going down, but rather because subsidies are going up.

The law also says these subsidies are made available to people buying insurance on "an exchange established by the state." But 34 states, including Georgia, chose not to create their own exchange, leaving its establishment up to the secretary of Health and Human Services under a different provision of the law. At issue was whether subsidies should also be available on the federal exchange, even though the plain language of the law indicated otherwise.

The main opinion goes to great lengths to explain why Congress meant something other than what it said. But the operative one seems to be this, from the opinion (case-law and statutory references omitted for brevity's sake):

"The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s.) Several features of the Act's passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through 'the traditional legislative process.' And Congress passed much of the Act using a complicated budgetary procedure known as 'reconciliation,' which limited opportunities for debate and amendment, and bypassed the Senate's normal 60-vote filibuster requirement. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation."

In other words: Congress was in a hurry, you see, (because Ted Kennedy died and voters in Massachusetts of all places elected a Republican to replace him in the Senate, expressly to slow down a process in which Democrats were ramming through a law without regard to objections from the minority party; the justices left that part out) so while we recognize the statute lacks "the type of care and deliberation" expected of landmark laws, we will just go ahead and assume Congress had thought about what it wanted to do with due "care and deliberation."

That is a helluva peg on which to hang the fate of a complicated and far-reaching law.

That is also the judgment of Justice Antonin Scalia, who notes the weakness of the "inartful drafting" excuse along with many others in a sharply worded dissent. He notes the court also changed the plain meaning of the law in its 2012 ruling uphold Obamacare (in which the majority held that the law's "penalty" for not buying insurance, which was intentionally not described as a "tax" for political purposes, was in fact a tax after all for the purposes of constitutionality). His summary of how the court has decided the two cases: "(N)ormal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved."

Indeed, one of the things that struck me while reading Roberts' opinion was his utter failure to contemplate, much less address, the possibility that Congress intended to limit subsidies to exchanges operated by states. Instead, Roberts recounts the history of previous, state-based plans to boost insurance (including the one in Massachusetts -- thanks again, Mitt Romney!). He describes the familiar refrain of Obamacare supporters that reforming health insurance necessarily means a few things: Insurers must cover all comers without charging more for all but a few characteristics; in turn, individuals must be required to purchase insurance so that they don't simply buy insurance once they become sick; and the government must subsidize these purchases for low-income folks so that they can afford to comply with the mandate.

Because Congress was trying to accomplish all these things, Roberts argues, there's no way Congress intended for subsidies only to be available to certain people, i.e. those buying insurance on state exchanges.

But another possibility was acknowledged by one of the health policy experts who helped create Obamacare, MIT professor Jonathan Gruber: that subsidies were limited to state exchanges as a way of encouraging states to do the hard work of setting up an exchange.

Scalia, in his dissent, points out Roberts' failure to consider the possibility (references again omitted):

"(T)he Affordable Care Act displays a congressional preference for state participation in the establishment of exchanges: Each state gets the first opportunity to set up its exchange; states that take up the opportunity receive federal funding for 'activities ... related to establishing' an exchange; and the secretary may establish an exchange in a state only as a fallback. But setting up and running an exchange involve significant burdens -- meeting strict deadlines, implementing requirements related to the offering of insurance plans, setting up outreach programs, and ensuring that the exchange is self-sustaining by 2015. A state would have much less reason to take on these burdens if its citizens could receive tax credits no matter who establishes its exchange. ... So even if making credits available on all exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the act. This is what justifies going out of our way to read 'established by the state' to mean 'established by the state or not established by the state'?" (emphasis original)

It is for reasons like this -- and two others from the 2012 ruling, including the one I already mentioned -- that Scalia suggests the ACA should be known popularly as "SCOTUScare." I can think of no more damning way to describe the way the court has assigned itself enough power to save such a flawed law.

(Note: Updates to the original post are incorporated throughout.)


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About the Author

Kyle Wingfield joined the AJC in 2009. He is a native of Dalton and a graduate of the University of Georgia.