By Debra J. Saunders
Friday, June 26, 2015 – Updated 2:12 pm
The GOP-majority Supreme Court saved President Obama’s bacon Thursday with a political ruling that papered over his signature Affordable Care Act. Writing for the majority in the 6-3 King vs. Burwell decision, Chief Justice John Roberts noted that the 900-page law was written behind closed doors with little debate or amendment, and thus was “inartfully drafted.” It was the court’s obligation, he wrote, to translate bill language limiting the government subsidies to enrollees in “an exchange established by the state” to also cover federal exchanges.
Roberts always has been a consummate politician in his role as guardian of the big bench. The President George W. Bush appointee had good reason to fear how the public might react if the Supreme Court overturned a law that benefits millions of Americans.
Thirty-four states rely on federal Obamacare exchanges. That’s 6 million people, 87 percent of whom bought health care with federal tax credits. Roberts cited a study that predicted that cutting off those subsidies would result in a 47 percent increase in premiums and 70 percent decline in enrollment.
Between a rock and a hard place, Roberts argued that Congress surely never meant to cut out subsidies in states without their own exchanges because “it would destabilize the individual insurance market in any state with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”
I sympathize, but Roberts has to know he’s wrong. Jonathan Gruber, an MIT economist who advised the White House, explained during a 2012 speech, the federal law limited subsidies to enrollees of state exchanges in order to “squeeze” states to act. Quoth Gruber, “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits, but your citizens still pay the taxes that support this bill.”
George Washington University law Professor Jonathan Turley — no conservative he — wrote last year: “I believe that the text is clear in the act and that the Obama administration effectively altered the language when 34 states decided to defy the government and refuse to create state exchanges.”
Joined by two conservative brethren, Justice Antonin Scalia wrote a blistering dissent. He raged that words have no meaning if “established by the state” doesn’t mean just that — and the law used the term repeatedly. Observing that Roberts also penned the 2012 decision that by a 5-4 majority perversely interpreted the Affordable Care Act “penalty” language as actually representing a tax, Scalia railed, “We should start calling this law SCOTUScare.”
I think Roberts did what he did to protect the court from the outrage that would follow if millions of Americans lost their subsidies. There’s a big hole in my thinking, as Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, kindly pointed out over the phone. Even without Roberts, there were five justices — GOP appointee Anthony Kennedy joined the four Democratic appointees — ready to uphold the health care act as per the Obama administration.
To read entire column, click here.