King v Burwell: The SCOTUS saves #Obamacare, again.

June 25, 2015
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These guys would probably do a better job.

Sigh.

The Supreme Court decision most everyone was waiting for, a ruling in King v. Burwell about the legality of Obamacare subsidies for insurance purchasers on federal exchanges, has just come out (PDF).

Spoiler: the administration won. The anti-constitutional monstrosity lives on.

I haven’t much to add to a legal analysis of this decision. For that, I recommend you read William Jacobson at Legal Insurrection, whose post on the decision will be updated as the day goes by.

I will say, however, that this is the second time a majority lead by Chief Justice Roberts has twisted and tortured the plain meaning of words and the processes of reason in order to achieve a desired result –preserving the Affordable Care Act. In the first,  he beat the square peg of the Obamacare penalties for not having insurance into the round hole of constitutional logic by declaring them simultaneously a tax and a fine. The goddess Reason wept.

Now, however, he and his colleagues on the majority have magically decided that the obvious meaning of the plain language of the law, that subsidies are only available through an exchange established by a state, is somehow ambiguous. To top it off, they ignored the unambiguous evidence offered by Jonathan Gruber, one of the key architects of the ACA, that the intent was to use the lack of federal subsidies to coerce states into establishing exchanges. Law and legal reasoning be damned, the Court’s role was to save Obamacare:

Given that the text is ambiguous, we must turn to the broader structure of the Act to determine the meaning of Section 36B. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers
of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Here, the statutory scheme compels us to reject petitioners’ interpretation 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. [at 15]

In fact, we know this is not true. The text is not ambiguous, and the Democrats knew the “death spiral” was in there. Reasoning from Gruber’s own words, they designed things so it would be a Sword of Damocles hanging over the head of opponents of the ACA. “Nice insurance industry you have there. Be a shame if you didn’t agree to set up an exchange and the whole thing crashed for a lack of subsidies.” Trouble is, more states than expected refused to set up an exchange, so it was the Fed that had to illegally provide subsidies to prevent a death spiral. As Professor Jacobson said on Twitter:

This is disgusting and disheartening, but not wholly unexpected. After the last Obamacare decision, it wasn’t likely a Court majority would cut the legs out from under the ACA, no matter what. That is left for us to do in 2017, when a Republican Congress has a Republican president — and us ready to hold their feet to the fire to repeal this damned thing.

I’ll leave you with a quote from Justice Scalia’s flaming dissent, per Legal Insurrection:

“We should start calling this law SCOTUScare.”

Indeed.

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