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The “SCOTUScare” Travesty
I hope to get to the SSM decision in a later post, but for now let me recap the result in yesterday’s decision in King v. Burwell: Obama 1, Rule of Law 0. I have a slightly longer analysis over at City Journal, but here’s the gist.
By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act — Obamacare — by extending health insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA.
This should have been an easy case. Obamacare provides two different mechanisms for establishing a health insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”
This limitation on tax credits was not a drafting oversight, Congress deliberately limited tax credits in order to pressure states into creating their own exchanges (constitutionally, the federal government cannot force states to create health care exchanges). At the time of the law’s passage, its congressional backers assumed that each state would buckle under and create its own exchange. Of course, that’s not how things ended up. Enter the IRS, which expanded tax credits to all exchanges in order to guarantee the viability of the Obamacare project.
The court’s majority opinion, written by Chief Justice John Roberts, has a surreal, through-the-looking glass quality about it. The phrase “an Exchange established by the State under Section 1311,” he says, is “ambiguous.” Actually, the phrase is crystal clear, including the word “state” which the ACA defines as “each of the 50 States and the District of Columbia.” If anything is unambiguous about Obamacare, it’s that tax credits are available only to those who purchase insurance through an exchange established by one of the 50 states or the District of Columbia.
No matter: the finding of “ambiguity” gives the Court license to interpret the law, rather than simply applying it. In the name of interpreting the supposedly ambiguous language, Roberts looks to the overall purpose of Obamacare which, he decides, is the avoidance of the dreaded “death spiral” of rising premiums and falling enrollments that could destabilize the individual market. His opinion is peppered with references to “death spirals”—one could almost make a drinking game out of it—and Congress’s desire to avoid them. And so, in order to effectuate the law’s higher purpose, the Court decrees that “an Exchange established by the State under Section 1311” includes “an Exchange established by the Secretary of HHS under Section 1321.” Curiouser and curiouser, as Alice said.
The Supreme Court’s decision, and its reasoning, strikes a blow against the rule of law. Among other things, it ratifies the executive branch’s unconstitutional usurpation of legislative power. When an administrative agency unilaterally rewrites the terms of a statute, it violates Article II’s command that the executive must “faithfully execute” the laws passed by Congress. Compounding the problem, the Court engages in its own power grab—declaring a seemingly limitless right to refashion statutes to suit the Court’s policy preferences.
In dissent, Justice Scalia—joined by Justices Thomas and Alito—rightly accuses the majority of ignoring the rule of law; “that ours is a government of laws and not of men.” Given the judicial makeover of the ACA, Scalia suggests that “we should start calling this law SCOTUSCare.”
You can read the full analysis over at City Journal.
Published in General, Law
As I asked yesterday after Burwell and the housing disparate impact case, and as I’m even more convinced after the gay marriage decision today, Federalism is dead.
Adam, I disagree with the opinion as well, but I have yet to see any analysis take up the actual substance of Roberts’ claim of ambiguity. You, like all the other analyses I’ve heard recently, elide the actual argument regarding ambiguity.
Roberts conceded that in the section describing the tax credits, the language is unambiguous and clearly only applies to state established exchanges. He claims the ambiguity arises not in the section authorizing the tax credits, the ambiguity arises in other sections of the law where the tax credits are further discussed. In those other sections of the law, the law clearly assumes that both state and federally established exchanges will be receiving tax credits. The law contradicts itself in multiple places in other words. Those contradictions are obvious examples of ambiguity.
One can disagree that it is the role of the court to clear up the ambiguity, which I do. But to make the claim that Roberts was wrong to conclude that the law is ambiguous, despite its specific language is not fair or accurate I don’t believe.
I bring this up because I think when our side is not accurate in our denunciations and arguments, we only give openings to the other side to question our bona fides and be dismissive of our views.
I don’t know that “ambiguity” is the word I would choose to describe such poorly written legislation. Roberts wrote that the legislature couldn’t possibly have intended to make such a mess, but it’s clear (regardless of your feelings about the ACA) that this is exactly what happened. In the first Obamacare decision Roberts said it wasn’t the court’s job to clean up after congress. He reversed himself in this one.
I agree he did, and that is the problem I have with his opinion. I don’t have a problem with him claiming that the way the law was written casts doubt on how to interpret the language of the statute. People keep on claiming that there was no ambiguity in the statute. There clearly is tons of ambiguity, so we shouldn’t claim otherwise. We look like we are cherry picking when we do.
BThompson: “Adam, I disagree with the opinion as well, but I have yet to see any analysis take up the actual substance of Roberts’ claim of ambiguity. You, like all the other analyses I’ve heard recently, elide the actual argument regarding ambiguity.
Roberts conceded that in the section describing the tax credits, the language is unambiguous and clearly only applies to state established exchanges. He claims the ambiguity arises not in the section authorizing the tax credits, the ambiguity arises in other sections of the law where the tax credits are further discussed. In those other sections of the law, the law clearly assumes that both state and federally established exchanges will be receiving tax credits. The law contradicts itself in multiple places in other words. Those contradictions are obvious examples of ambiguity.
One can disagree that it is the role of the court to clear up the ambiguity, which I do. But to make the claim that Roberts was wrong to conclude that the law is ambiguous, despite its specific language is not fair or accurate I don’t believe.”
Thank you for this enlightening comment. I’ve often wondered about the accuracy of the ACA given how long the two parts of it are.
It is unfortunate that the Supreme Court did not simply send the bill back to Congress to be thoroughly edited and proofread. It probably has many similar errors.