I open with Scalia, because he is more fun, more scathing, and in the minority (with Thomas and Alito). Scalia scorches the majority’s reasoning as “absurd,” “Pure applesauce,” and “interpretive jiggery-pokery”:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”
…(Understatement… Impossible possibility… Contrivance! Thy name is an opinion on the Affordable Care Act!)…
…the opinion continues, with no semblance of shame….
…Faced with overwhelming confirmation that “Exchange established by the State” means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation.
…context only underscores the outlandishness of the Court’s interpretation.
…For its next defense of the indefensible….
Could anyone maintain with a straight face that §36B is unclear?
…Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting” [Justice Antonin Scalia, dissent, King v. Burwell, 2015.06.25].
Justice Scalia throws this decision in the same pot as the 2012 ACA-saving NFIB v Sebelius decision and, in his concluding lament, accuses the majority of cahootsifying with President Obama and certain favorites in Congress to rewrite Obamacare to keep it alive:
…The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by liti- gants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
I dissent [Scalia, 2015.06.25].
Justice Scalia’s rage makes for blistering entertainment, but it didn’t persuade the six-justice majority, led by Chief Justice John Roberts, who today as in 2012 helps save President Barack Obama’s crowning achievement. Roberts (joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) looks at the reforms Massachusetts adopted to avoid the “economic death spiral” that earlier insurance reforms in isolation caused, sees the same integral package of reforms enacted in the ACA, and decides that Congress could not have meant to guarantee affordable health insurance to all Americans without expecting that tax subsidies for insurance premiums and the individual insurance mandate would take effect in every state.
In other words, this Supreme Court decision in favor of Obamacare is brought to you by Mitt Romney.
Chief Justice Roberts dismisses the minority’s cry of plain language! words on the page! by pointing out that “Our duty, after all, is ‘to construe statutes, not isolated provisions.'” Yes, yes, Section 36B says individuals qualify for the premium tax credit if they enroll in “an Exchange established by the State under [42 U. S. C. §18031].” But the Chief Justice reads that provision in this context (the core of the semantic argument):
First, all parties agree that a Federal Exchange qualifies as “an Exchange” for purposes of Section 36B. See Brief for Petitioners 22; Brief for Respondents 22. Section 18031 provides that “[e]ach State shall . . . establish an American Health Benefit Exchange … for the State.” §18031(b)(1). Although phrased as a requirement, the Act gives the States “flexibility” by allowing them to “elect” whether they want to establish an Exchange. §18041(b). If the State chooses not to do so, Section 18041 provides that the Secretary “shall . . . establish and operate such Exchange within the State.” §18041(c)(1) (emphasis added).
By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). In other words, State Exchanges and Federal Exchanges are equivalent—they must meet the same requirements, perform the same functions, and serve the same purposes. Although State and Federal Exchanges are established by different sovereigns, Sections 18031 and 18041 do not suggest that they differ in any meaningful way. A Federal Exchange therefore counts as “an Exchange” under Section 36B [Chief Justice John Roberts, majority opinion, King v. Burwell, 2015.06.25].
Such—that one word roasts the beef brought by four selfish Virginians who didn’t want to buy health insurance over four words. Fascinating.
That semantic argument gives the majority the ground to follow the principle that the Supreme Court “cannot interpret federal statute to negate their own stated purpose” [Roberts, p. 15]. The majority recognizes that affirming the plaintiffs’ position would immediately deny residents of 34 states access to one key reform of the ACA, the premium tax subsidy, then practically negate in 34 states the meaningful application of a second key ACA reform, the individual insurance mandate, leaving the ACA unable to function the way Congress intended. To support that point, Roberts quotes Scalia:
The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enrollment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable Care Act’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan, The Implications of a Supreme Court Finding for the Plaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insurance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool, 42 U. S. C. §18032(c)(1), premiums outside the Exchange would rise along with those inside the Exchange. Brief for Bipartisan Economic Scholars as Amici Curiae 11–12.
It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well [Roberts, 2015.06.25].
Contrary to Scalia’s assertion that the majority opinion rewrites the law and “aggrandizes judicial power,” Roberts says this ruling is very much about putting the will of Congress above the Court’s creative nitpickery:
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 [emphasis mine; Roberts, 2015.06.25].
“A good day for America,” says the President? Come on, Barack! If Justice Scalia can blurt Scottish, you can quote Craig Ferguson: “It’s a great day for America, everybody!” Millions of Americans keep their health insurance. The Affordable Care Act stays in effect, in law and in practice (and for well beyond 2017, Jason Ravnsborg). And just for kicks, we get a splendidly grouchy but ultimately ineffective rant from Antonin Scalia. A great day for America, indeed!