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Sayeth the Supremes
Obamacare Lives!

In a 6–3 decision, the Supreme Court has upheld the legality of Obamacare subsidies for federally-run exchanges. At issue was language in the law that seemed to limit subsidies to Americans who enrolled in state-run exchanges—when about three dozen states did not set up their own exchanges but delegated that to the federal government. Chief Justice Roberts wrote the majority decision, arguing that the context surrounding the ACA should be used to interpret the contested language. NYT:

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan. “In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

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

We at TAI were never too confident that SCOTUS would rule against the law. This will no doubt be a big PR victory for the ACA, and the nation might be growing weary of more debate about a law that has now twice survived the Court. That fatigue could very well work in the ACA’s favor.

But this legal challenge was always quite orthogonal to the main issues surrounding the ACA. The big metrics by which we should evaluate the ACA are how well it fixes the fundamental issues making U.S. health care unsustainable and how much it improves the health care experience of patients—and whether any gains made on either score could have been achieved with a different, less complicated reform. That is the conversation we should be having about the ACA, and with this case behind us we could now focus on it again—if we have the will to do so.

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  • FriendlyGoat

    No one who ever reads my comments here will be surprised that I believe this is good news. I always wondered if John Roberts would feel comfortable striking ACA on the King plaintiffs’ arguments after upholding it in 2012. Evidently he didn’t.

    • lord acton

      FG, now we will get to see just how long this Rube Goldberg fix to our Rube Goldberg health care financing system will last. The pharmaceutical companies and insurance companies and big hospital chains sure seem to love it. Good times.

      • FriendlyGoat

        True. Health care providers, including all the BIG ones, benefit from this. But there is nothing to stop us from moving forward on the big goal of cost reduction which is RELENTLESS disclosure of pricing of all services at all levels—-down to the last cotton swab. We did not need to cut coverage out from under people in order to actually work on cost control.

        • lord acton

          As disclosed before, my family had coverage cut out from us by the ACA. Our plan no longed deemed adequate. Least expensive bronze plan was $740 a month (for three of us, my wife pays for health insurance through her graduate school program) with a deductible of $13,300. Oh well, we are just kulaks I guess. “If you want to make an omelet, you have to be willing to break a few eggs.” Right? You asked many blog posts ago about the specifics of my previous plan. I am just a simple family physician, how could I be expected to understand and chose my own health insurance? Right?

          • FriendlyGoat

            Would it be fair of me to assume that you were not at risk of bankruptcy from a medical episode under your old plan and that you also are not at such risk under your bronze plan? Part of the purposes of ACA were to bring people into a state of security where medical costs do not financially devastate them for life—–and to help assure that expensive care does not get written off as uncompensated to the providers. It has helped on those fronts, hasn’t it?

          • Andrew Allison

            Obfuscation. The stated purpose of ACA was to reduce the cost of health insurance (by $2,500/year, as I recall the President promising). In this it has spectacularly failed: the fact that taxpayers are now subsidising insurance for 87% of the beneficiaries doesn’t change the fact that its cost has increased dramatically. I also seem to recall a promise that “if you like your plan . . ., etc., etc. ACA is simply indefensible.

          • FriendlyGoat

            THANKFULLY, Roberts and Kennedy—–hardly liberals—-, found ways to defend it in their minds.

          • Andrew Allison

            More irrelevancy. The decision was was a no-brainer for intellectually honest jurists (I’m surprised, and disappointed, that it was only 6-3). The language is clearly ambiguous and, IMNHO, the majority reached the right decision. The decision, however, has precisely zero impact on the unfolding disaster which is ACA.

          • FriendlyGoat

            You and I have agreed in the past on single-payer health care, have we not? When ACA is repealed and replaced with a more liberal plan, fine. But, we have to admit that is not in the cards with the present Congress. So, as a second choice, I’m for ACA.

          • Andrew Allison

            No, we have not agreed about single-payer health care. What we have agreed about is single-payer insurance. I suspect that those who have seen their health insurance premia dramatically increase for higher deductibles and less coverage, and the taxpayers who are subsidizing one of the greatest wealth transfer plans in history will disagree with you! As a reminder, it was “your side” which single-handidly put into place the legislation which, while screwing the un- and self-insured, has tripled the market value of insurers and providers since enactment.

          • FriendlyGoat

            I guess single-payer insurance that is not single-payer health care is another one of your trips around some mystical circle. Whatever.
            This is getting boring, Andrew.

          • Andrew Allison

            What’s getting boring is your inability (refusal?), having apparently failed to grasp what Medicare is, to recognize that insurance and providing care are two different things (which, as the VA demonstrates, should never be combined).

    • M Snow

      I wonder how you will like it when a future Republican President “interprets” law as he or she pleases and then gets upheld but a similarly supine Supreme Court?

      • FriendlyGoat

        Well, your scenario is a great reason why we should elect Hillary Clinton.

        • M Snow

          This is a serious question. Just how dishonest would a Democrat have to be not to get your vote?

          • Andrew Allison

            That’s irrelevant. Voting for (insert your party here) regardless is a reflexive response on the part of partisans on both sides.

          • M Snow

            Doesn’t make it right.

          • FriendlyGoat

            Well, if Republicans are running on high-end tax cuts, deregulation of business practices, supposedly “small government”, appointment of conservatives to the federal bench, repeal of ACA in favor of “selling insurance across state lines”, undefined “entitlement reform” and the rest of their usual platform, I will be voting for literally ANYONE on the ticket who opposes them.

            I know you want to talk about all the alleged failings of Hillary Clinton and I literally COULD NOT CARE LESS. The election is about the issues a president will support—-period.

          • Andrew Allison

            Mrs. Clinton put up with the serial infidelities of her husband to achieve wealth and power, knowingly broke the rules about government correspondence, and lied through her teeth about Benghazi. She is clearly unfit for the office and, if she’s elected, the US will, just as it did with Barack Obama, get the government it deserves and pay the price.

          • FriendlyGoat

            I really do wish we had another Obama instead of Mrs. Clinton. She simply is not as strong an intellect as BHO and I wish we had another stronger candidate. But the agendas of the parties are really all that matter to me, as I already said.

          • Andrew Allison

            I’m as shocked, SHOCKED as I expect other followers of the blog will be, to learn that you don’t care about the scruples, or lack thereof, of the Democratic candidate is as long he/she has a chance of winning [sarc alert]. But as to other candidate, how about Bernie Sanders who, other than pretending to be independent, actually appears to have (progressive) principles? And then there’s Fauxcahontas. Either one would be very much more likely to actually advance the progressive agenda than the utterly unscrupulous Clinton.
            FWIW, although Warren is clearly unelectable, I think that your side may be underestimating Sanders. At worst, it would be cathartic to have a contest between an out-and-out socialist and a conservative.
            You are, IMNHO, faced with a dilemma: try and elect somebody who is utterly unscrupulous, or stick to your principles and go with somebody who actually believes as you do but may not be electable.

          • FriendlyGoat

            That’s why I’m not going to dwell on Mrs. Clinton’s supposed scruples or supposed lack thereof. There is not a single Republican I can and would support for their straight-arrow integrity to “do what they say they will do.”

            BECAUSE, Andrew, I don’t want any of that GOP sh*t done.

          • JR

            I appreciate your honesty in your support for “ends justify the means” paradigm of obtaining power. However, you cannot blame others for adapting the same paradigm for obtaining power to do things you adamantly oppose. If the honesty and trustworthiness of the politicians don’t matter than we are truly in a dog eat dog world.

          • FriendlyGoat

            I hear you. As I told, Andrew, I wish we had a better electable candidate. Bernie Sanders suits me fine, but I doubt he will be nominated or elected in the general. Sooooo, I an going to need to support our platform with the candidate we nominate. There is no amount of gossip, true or untrue, about Mrs. Clinton which causes me to give over all the positions and issues and concede that HER shortcomings make the GOP ideas right.

          • JR

            Fair enough. Like I said before, I really truly believe that the biggest deficit we are facing is that of leadership. Hillary Clinton, Donald Trump, Martin O’Malley, another Bush???? You’ve got to be sheiting me….

          • FriendlyGoat

            We actually could end up with “The Hillary” matched against “The Donald”, I suppose. It does seem rather surreal, doesn’t it?

          • JR

            Yeah, but in the “I dropped some bad acid and having a really bad trip” kind of way.

  • Thom Burnett

    There’s another question that this decision deals with – that’s in many ways more important than the fate of Obamacare. That is do words mean what they say they mean or do they mean whatever we want them to mean?

    In this case, the plain English was clear. The Supreme Court only considered this argument because it would hurt some financially and others politically.

    We’re already a long ways down the road to where the Constitution means whatever the president wants it to. This is another significant step forward in making the words meaningless and the government able to do whatever it wants.

    • Pete

      Roberts shows his red colors …. again. This boob is a disgrasce.

    • Fat_Man

      “That is do words mean what they say they mean or do they mean whatever we want them to mean?”

      In Washington words have no meaning at all.

      • CapitalHawk

        That’s not true. They mean exactly what those in power say they mean. Nothing more and nothing less.

    • fastrackn1

      “That is do words mean what they say they mean or do they mean whatever we want them to mean?”

      Words/writings are always up to interpretation…governments and religions have been demonstrating that since the beginning of humanity….

    • Andrew Allison

      As noted elsewhere in this thread, the plain English was far from clear!

  • Fat_Man

    1. Any of you, who are still of the opinion that the Supreme Court can or will protect the American people from the Federal government, needs to rethink your opinion.

    2. This very dark cloud has a silver lining. A reversal would have required* Boehner and McConnell to do something. They would have caved in to the Democrats and made things worse.

  • f1b0nacc1

    Anyone terribly surprised by this really hasn’t been paying attention. Robert’s joined the majority in the Yates decision earlier this year, which validated the rather expansive reading of ‘text’ in legislation. That should have been a clear tip-off….
    Now just because the ruling is consistent with prior (bad) reasoning is no reason to cheer it, but it does have the virtue (as such) of being CONSISTENTLY wrong….

  • stan

    The government clearly lied to the court. The court swallowed it without blinking. Surprise? No. Just confirmation that the USA is all Chicago now. We’re living in Al Capone’s America, except the rule of law means a lot less now and the dishonesty, corruption, and lawlessness are much worse.

  • Andrew Allison

    I fear that I must disagree with commentators with who I seldom do so. First let me say that, for the reasons mentioned in the post and more, I think that the ACA is a monstrosity which will do nothing to reduce the cost of health insurance (in fact, as we see, it’s increasing it by leaps and bounds). However, I always had some difficulty with the reasoning behind King v. Burwell on the grounds that the language is “by the state” rather than “by a state”. Regardless of how one individually interprets “the state”, as Chief Justice Roberts wrote, “the words must be understood as part of a larger statutory plan.” If the language needs further clarification, it’s up to Congress to do so.

    • CapitalHawk

      “If the language needs further clarification, it’s up to Congress to do so.”

      Yes, and this is exactly what the Supreme Court says whenever they rule against the government as well because that is always true no matter what the Supreme Court says (so long as we are talking about statutory interpretation and not a Constitutional matter).

      • Andrew Allison

        Even if it’s a constitutional matter, I think what the Supreme Court says is: This cannot stand. At which point, it’s up to Congress (not, I hasten to add, the Administration) to act.

    • f1b0nacc1

      Sadly if you read Robert’s writing for the majority you will find that he doesn’t agree with you. He freely acknowledges that the words as written do not provide for the feds to step in for the states who don’t choose to participate. He merely hand waves this away by stating that the overall intention of the ACA was to improve markets, not destroy them, and thus the clear working of the legislation is contradicted by the greater meaning. As the kids like to say….’very meta’…

      • Andrew Allison

        On the contrary, what Roberts wrote, in part, is ” Given that the text is ambiguous, the Court must look to the broader structure of the Act to determine whether one of Section 36B’s “permissible meanings produces a substantive effect that is compatible with the rest of the law.” That is, Roberts and I agree that the words as written are ambiguous. As he also writes, the Act specifically directs HHS to set up an exchange in States which fail to do so. Although ACA is a terrible piece of legislation, the blame for this lies with those who voted before reading it, not the Supreme Court.

        • f1b0nacc1

          You are over-interpreting Robert’s words. Yes, he does conclude that the court must look to the broader structure of the act, but he concedes that it must do so because the text is ambiguous, i.e. that it does not offer specificity or direction. He concedes that the feds, while they may create exchanges, are not explicitly granted the option of defining subsidies by the wording of the act, but rather the broader meaning of the act (i.e.its structure). This might sound like a limited distinction, but in fact it is a critical one, it is the essence of the distinction between a textual and a consequential reading of the act.
          Indeed the ACA is an awful piece of legislation, but the Court’s decision is far worse, as it reaches beyond a textual reading to a consequential one, undermining the separation of powers and providing the basis for infinite mischief by the executive. Ironically it is a very European ruling….

          • Andrew Allison

            Roberts’ words (Given that the text is ambiguous . . .) are unambiguous, and not subject to interpretation. WRT subsidies, the Court found that “If a State chooses not to follow the directive
            in Section 18031 to establish an Exchange, the Act tells the
            Secretary of Health and Human Services to establish “such Exchange.”
            §18041. And by using the words “such Exchange,” the Act
            indicates that State and Federal Exchanges should be the same.”, and that “the same” includes providing subsidies.
            As I wrote before, much as I despise ACA, I think that the majority got the decision right, and criticism of the ACA should be directed toward its creators, not the Court.

          • f1b0nacc1

            We are actually in agreement about much of this (though I believe the majority was seriously mistaken in their ruling), specifically that Roberts admits that the text was ambiguous. He THEN points out (in the citation you provide) that it requires interpretation because of his policy preference. The argument that the Secretary shall establish an exchange refers to the fed’s obligation to provide for an exchange (unquestioned), but does NOT demand that such an exchange be subject to subsidies. Conflating the two is a bit of rhetorical legerdemain, and however much he may pretend otherwise, it remains that.
            Indeed the real villain in this piece are the creators of the ACA, but we already knew that. My point is that moving away from the text to a consequential analysis is a very dangerous one for those on both sides of the debate. It is consistent with his ruling in Yates, but I didn’t like that one either….DESPITE the fact that it was consistent with my policy preferences.

          • Andrew Allison

            The Court’s argument that “such Exchange” means an exchange having all the characteristics of a State exchange, including providing subsidies, seems persuasive to me. As does http://www.newyorker.com/news/daily-comment/doom-for-a-cynical-assault-on-obamacare. Can we agree to differ on the Court’s decision and its implications?

          • f1b0nacc1

            Two points:
            1) The clear wording of the law (along with the comments made by Gruber, which indicate that the wording was NOT accidental) should override the somewhat tortured interpretation of a SCOTUS justice who has already demonstrated his strong desire to sustain the law by any means necessary. In that sense, his (Robert’s) dissent from today’s SSM ruling strikes me as a bit disingenuous….did he read his opinion from yesterday?. The legislation explicitly refers to ‘an exchange established by THE state” (capitalization is mine), which is clearly different than ‘a State exchange’ in a subordinate reference. Once you decide that the law means what you want it to mean, not what it actually says, you are in Friendly Goat territory….
            2) Toobin’s comments notwithstanding, the issue here is about textualism vs consequentualism, and those are definitely principles worth defending. One can argue about whether or not the law is a good idea (and reasonable people can differ on that), but to pretend that any objection to simply redefining it after the fact is simply bad faith is once again the kind of thing that our resident twit engages in, not a serious argument.
            Of course we can differ on the decision and its implications, and I sincerely hope that I am wrong about the latter. As always, I look forward to our connections here…

  • JR

    If the situation warrants it, 2+2=5. We always knew that.

  • fastrackn1

    KLANK!!…{sound of can as it’s violently kicked down the road.}

    Did anyone really think SCOTUS wanted the responsibility of making this decision?

    • LA_Bob

      Well, SOMEBODY on the SCOTUS did (four justices at least, I believe). They took the case, didn’t they?

      • fastrackn1

        They didn’t want to make the decision to vote against it…it’s easier politically to kick it down the road to the republicans if they get in next term.
        The reason they took the case was purely political, for many reasons….

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