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A few days ago, Ricochet’s John Yoo predicted that Supreme Court will decide that the PPACA (Obamacare) does not allow for the federal exchanges to pay out subsidies in the upcoming King v Burwell case. Although I am a legal ignoramus, I have been following the excellent symposium on this case over at SCOTUSblog, and I wonder whether we might see an unexpected result here.
Based on the evidence from both sides, two points become clear. There is indeed no explicit passage in the law that mandates the federal subsidies, as exists for state exchanges. Still, there are a number of passages which make no sense if the federal exchanges are forbidden from paying out subsidies. More to the point, the law is so inconsistent and muddled that a good-faith argument could be made that it is simply ambiguous and incoherent on this issue; if so, the IRS will have the authority to come up with its own interpretation (the so-called Chevron deference).
Prof. Yoo suggests that Chief Justice Roberts may be eager to atone for his prior sins in the NFIB v Sibelius case, especially after the last election in favor of Republicans. Yet I find it strange to imagine that a man who only two years ago twisted himself into pretzel-like contortions to save the law will reverse himself and let the law twist in the wind. Instead, I wonder if he has something more nefarious up his sleeve.
There are essentially three ways the Court could decide: a) The law does not allow federal exchanges to pay out subsidies; b) The law does allow the subsidies; or c) The law is ambiguous on this matter.
This is where my scenario becomes somewhat unorthodox. It all comes back to the Chevron deference. If the Supreme Court were to rule that the law is genuinely ambiguous, the IRS would decide the issue, and we know how the current IRS will decide. But in two years, there will be a new election, and a new president who can choose a new head of the IRS. In other words, by deciding that the law is ambiguous, Roberts could hand the keys to the next president to legally hollow out Obamacare single-handedly.
On Ricochet, we often lament Obama’s use of executive authority to counteract or ignore laws that are perfectly clear. But if the Supreme Court itself determines the law to be unclear, the president (whomever he is) would be obligated to act alone. Considering how difficult the filibuster makes full repeal of the law — even with a Republican president and majorities in both houses of Congress — having the Supreme Court’s seal of approval to single-handedly change the implementation of the law would be a political godsend.
It’s also worth considering the issue from the Court’s perspective. Roberts obviously prefers legislative fixes to judicial ones, and wants to preserve the public’s faith in the Court and the judiciary. Yet, if the Supreme Court rules completely against the government in King v Burwell — option a from above — the ruling will become the left’s Roe v Wade for the next generation: their textbook example of judicial overreach.
I imagine everyone on Ricochet would be perfectly content if the Supreme Court gave Obamacare a coup de grace, regardless of the political fallout. But from the standpoint of good governance, this should be determined by elected officials chosen directly by the people.
Giving the president explicit authority to decide on these subsidies would likely turn the next presidential election into a referendum on Obamacare. If the bill is truly as unpopular as polls suggest, a Republican candidate running on a platform of eliminating federal subsidies (which would almost inevitably lead to the unravelling of the entire law) should be a shoo-in. And given the difficulty for Republicans to win 60 Senate seats, it would provide voters an unprecedented and historic opportunity to roll back an entitlement program at the ballot box.
A reasonable predication or too clever by half?
Image Credit: “Official roberts CJ” by Steve Petteway – http://www.supremecourthistory.org/history-of-the-court/the-current-court/chief-justice-john-roberts-jr/. Licensed under Public domain via Wikimedia Commons.