I mean, come on folks! It really does disturb me that a Supreme Court decision not to strip millions of their health insurance barely makes a ripple (before or after the fact) while a decision in favor of same sex marriage leads to such an uncontained outburst. Granted, the decision for Obamacare is the disaster that didn't happen while the decision for SSM changed something. But I didn't even get much anxiety ahead of time.
That being said, after actually reading the decision in King v. Burwell, I can see why it is so hard to get excited about. Let's just say it isn't exactly beach reading.
It isn't all that long an opinion. Nor is it a highly fragmented opinion, as decisions on controversial issues so often are. There is one majority opinion, written by Justice Roberts and joined by five others, and a dissent written by Scalia and joined by two others. Scalia concludes with about the opposite of Lincoln's famous words at Gettysburg, "The world will little note nor long remember what we say here, but it can never forget what they did here." Wrong and wrong! So, too, Scalia:
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 litigants 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.Well, I suppose he is right to the extent that this case will probably be cited as precedent in other cases on statutory construction. But it is unlikely to be a case that lives in infamy along with, say Dred Scott or Plessy v. Ferguson, or even Roe v. Wade. In fact, it has been largely forgotten already!
Those were cases that contained famous quotes and enunciated broad principles. King, by contrast, is mostly a dry-as-toast parsing of specific obscure statutory clauses to determine what they mean in the context of other statutory clauses. Bo-ring!
The problem, of course is that the ACA made subsidies available on an "exchange established by the state" and neglected to offer them on exchanges established by the federal government. Roberts points out that other parts of the Act clearly treat exchanges created by the states and exchanges created by the federal government as equivalent. More importantly, he emphasizes the overall purpose of the statute. Guaranteed issue (requiring insurance companies to cover everyone regardless of pre-existing condition), community rating (requiring insurance companies to give comparable rates to all members of a community regardless of their health), individual mandate (requiring everyone to have health insurance) and subsidies all go together. Without the subsidies, the system would break down. It would not just make coverage unaffordable in states that did not establish exchanges, by applying the same regulations in all cases, it would wreck their individual coverage markets altogether. (By requiring companies to cover the sick as well as the well at the same rates, they would discourage the well from buying insurance until they were sick. This would mean companies would cover a disproportionate number of sick people, forcing them to raise rates and drive more healthy people from the markets. The dreaded death spiral).
Roberts concludes with the words, "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." Translation: All you Obamacare opponents out there, do not try to wreck the law with another of your lawsuits. We will not cooperate.
Scalia dissents with foaming-at-the-mouth outrage. Thomas and Alito presumably chose him to write the dissent because no Supreme Court Justice does foaming-at-the-mouth outrage as well as Scalia.
His argument is basically that "established by the state" means established by the state. The Supreme Court must interpret the statute by its exact words and ignore any disagreeable real-world consequences like setting off a death spiral in 34 states. Besides, by preferring to have states establish exchanges, maybe Congress was signaling that it preferred to involve the states, and considered this a more important goal than making health insurance more widely available. (Actually the evidence against this is pretty powerful, but never mind).
Probably more significant is his outraged tone throughout. (No Supreme Court Justice does outrage as well as Scalia).
Understatement, thy name is an opinion on the Affordable Care Act!Finally, most dissents say, "I respectfully dissent." Scalia pointedly leaves out the word "respectfully," which seems accurate enough.
Impossibility, thy name is an opinion on the Affordable Care Act!
Contrivance, thy name is an opinion on the Affordable Care Act!
We should start calling this law SCOTUS [Supreme Court of the U.S.] Care
No constitutional issues were raised here, which is perhaps a shame. At oral argument, Justice Kennedy was concerned about the argument that Congress deliberately made subsidies available only on state exchanges in order to pressure states into creating them. He considered the threat to send the individual policies market into a death spiral to be an unconstitutional coercion of the states, and many expected him to rule in favor of the subsidies on those grounds. It is, in fact, a well-established rule with the Supreme Court that Congress may use an offer of money to entice states, but not to coerce them. (That opponents of Obamacare were prepared to send state insurance into death spirals just to make Obama look bad tells us something about just how irrational they have gotten).
It is also a longstanding rule of the Supreme Court that if a statute can be interpreted in either a constitutional or an unconstitutional way, it should be interpreted as constitutional. Thus the potential argument was that the threat to send state health insurance into a death spiral is a unconstitutional act of coercion, so we should avoid that result by interpreting "exchange established by the state" to include federal exchanges. Of course, if the majority had said that, Scalia would have agreed on the unconstitutional coercion, and offered it as another golden opportunity to strike the whole measure down.
Scalia is enraged that the Supreme Court has now twice interpreted this statute in order to protect it. But if the precedent here is that the Supreme Court should normally interpret legislation so as to preserve rather than undermine it, that is a longstanding rule of interpretation and a generally sound one. I think it is probably reasonably to infer an element of projection here. He was really, really looking forward to overturning or at least gutting this statute and is angry (really angry) at his colleagues for passing up the opportunity not once but twice.