The lesson Democrats took from the last Supreme Court ruling on the Affordable Care Act (NFIB v. Sebelius) is not that the law is well crafted or that all of its provisions fall within constitutional boundaries — it is that the Supreme Court and Chief Justice John Roberts can be lobbied. And so as the Court hears King v. Burwell, the case challenging certain exchange subsidies, the rhetoric deployed in the lobbying war has gone nuclear.
Linda Greenhouse of the New York Times insists that “the Court has permitted itself to be recruited into the front lines of the partisan war. Not only the Affordable Care Act but the Court itself is in peril.” Failing to uphold the Obama administration’s position, she warns, would damage the “honor of the Supreme Court.” The Center for American Progress declares that the “legitimacy of the Court” will be in question if the Obama administration should lose. Ruth Marcus of the Washington Post preemptively charges that a ruling against the Obama administration would constitute knuckling under to the “judicial activism the conservatives repeatedly disavow.”
The Affordable Care Act (ACA) authorizes the federal government to provide subsidies and inflict penalties on Americans residing in states in which an exchange — a government-managed marketplace — has been “established by the State.” The statute defines “state” as one of the 50 states or the District of Columbia. Establishing an ACA exchange brings states some financial benefits but also imposes heavy burdens on them, and the states ran the cost-benefit analysis in such a way as to produce an outcome dramatically different from what the ACA’s architects had expected: Most of them refused to set up exchanges. The federal government stepped in and set up its own exchanges and determined, based on no obvious legal authority, that the IRS could offer subsidies in the federally created exchanges just as it does in exchanges created by the states. The complainants in King v. Burwell argue that the plain language of the law does not authorize the government to do this. In response, the Democrats have argued . . . anything that leaps to mind: that the language in question is essentially a typo, that the economic architecture of the law would be rendered nonsensical by a strict reading of the statutory language, that Republicans are mean meanies and John Roberts is a mean meany if he rules in their favor.
There are some ready answers to some of those objections: It is far from clear that the language is a “scrivener’s error,” a genuinely unintended mistake, and so it is up to Congress, not the Supreme Court, to repair that error. If the ACA would be hobbled by a reading of the law that assumes that law says what it says and means what it says — and that probably is the case — then, again, it is up to Congress, not the Supreme Court, to correct its error. The Supreme Court is an arbiter of legal and constitutional questions, not a paralegal.
The Affordable Care Act provision at issue in King gave each State a straightforward choice: establish your own health insurance exchange, or leave it to the federal government. A State establishing its own exchange would trigger subsidies for its people, true — but at great cost. The State’s acceptance of subsidies causes the individual mandate to bind more people, and triggers the employer mandate within that State. It also forces the State to shoulder the significant costs of establishing the exchange — quite a burden, as many States learned (or are learning) the hard way. In Obamacare, as in life, there are no free lunches.
The question of federalism at issue is this: The matter of regulating health insurance has long been a state power rather than a federal power, and when a federal action substantially changes the relationship between federal and state powers, longstanding Supreme Court precedent requires that Congress make its intent “unmistakably clear in the language of the statute.” It seems impossible at this point to defend the proposition that the language of the ACA is “unmistakably clear”; the highly trained lawyers presiding on the lower courts cannot agree on an interpretation. Critics of the ACA charge that, absent clear statutory intent, the federal government does not have the power to step into the states that decided against creating exchanges and treat them as though they had. ACA defenders, advanced practitioners of legal yoga, twist that around, arguing that absent clear statutory intent, the federal government cannot deprive the states of subsidies that Congress intended to establish. But the crux of the matter is that it is not clear that Congress intended to establish subsidies in states that refused to create exchanges, and those who take Gluck’s position, as Gray, White, and Gustafson argue, “are not answering the question presented — they’re begging it.”
They are also arguing that federalism means giving the states less of a say over areas traditionally under their jurisdiction — which is to say, they are interpreting federalism to mean the opposite of what federalism means.
The final line of argument we expect to hear, especially if things look to be going poorly for the Obama administration, is: anarchy. That is, if the Court should rule against the Obama administration, then millions will be thrown into destitution, and the health-care system will be reduced to a shambles. That need not be the case. Congressional Republicans already are coming forward with transitional plans, and there is time to develop them. As Tom Miller of the American Enterprise Institute points out, a combination of existing insurer contracts and federal and state law would give Congress some months to act before the loss of subsidies really began to kick in. There is time to ensure that those who need help get it, and get it in a way that does not do violence to the law, the constitutional order, or the health-insurance market at large.
Democrats are no doubt wishing they’d done a better job when drafting the Affordable Care Act. Their critics, oddly enough, wish much the same thing. But the fact is that the law is a slop bucket of poorly thought-out notions, though not a slop bucket so capacious as to accommodate the Obama administration’s current conception of its own powers. Wishful thinking will not make it otherwise, and it is not the role of the Supreme Court to rescue congressional Democrats and the Obama administration from their own incompetence.