We have always been at war with Eastasia. Oh, and an “Exchange established by the State[s]” can also mean an Exchange established by the federal government’s Secretary of Health and Human Services.
Chief Justice John Roberts channeled his best George Orwell last Thursday, authoring a 6-3 ruling in King v. Burwell allowing the distribution of Affordable Care Act subsidies to continue in all 50 states and Washington, D.C.
Prior to Thursday’s ruling, the Affordable Care Act (aka the ACA or Obamacare) faced the prospect of a far different future. Without subsidies to temper the high costs of Obamacare’s “guaranteed-issue,” “community-rated” health insurance plans, consumers in 34 states—including Kansas—would have been free from the law’s individual and employer mandates to buy health insurance based on insurance premiums exceeding a threshold amounting to eight percent of their incomes.
Obamacare supporters—calling for the legislation’s subsidies to be upheld—viewed this consequence as something Congress couldn’t possibly have intended in drafting. Obamacare’s detractors disagreed, arguing that a series of choices made in the law’s drafting and implementation suggests that Congress got exactly what it wanted: a set of major circumstances enticing states to establish their own exchanges. Yet, the fact that so many states saw through this enticement presented a unique opportunity in conjunction with King v. Burwell. A ruling discontinuing Obamacare subsidies in 34 states would effectively discontinue Obamacare in these states as well.
Instead, Thursday’s ruling virtually severs any lines differentiating a federally-established exchange from a state-established one.
Specifically, Chief Justice Roberts hones in on Section 18041 of the legislation. It directs the federal Secretary of Health and Human Services (HHS) to establish a federal exchange in the states that decline to set up their own exchanges by dictating that “the secretary shall establish and operate such Exchange within the State.” Roberts argues that the use of the phrase “such Exchange” in the section covering federal exchanges after previously referring to “Exchange[s] established by the State” in prior sections must mean that state and federal exchanges are equivalent entities. He then moves to Sections 18031 and 18032 dealing with the exchanges providing “qualified health plans to qualified individuals” within “State[s] that established Exchanges.” He points out that if the phrase “States that established Exchanges” were interpreted verbatim there would be no qualified individuals on federal exchanges. In his view, since “…the Act clearly contemplates that there will be qualified individuals on every Exchange, this must imply that “Exchanges established by the State” and federally-established exchanges are—again—equivalent.
In all, Roberts characterizes plain text interpretations contrary to such equivalence as “strong.” Yet, he signals a need to look past them in discerning Congress’ true intent when it comes to Obamacare. He chalks the law’s ambiguity up to “…more than a few examples of inartful drafting” and saves it from bringing about the insurance market “death spirals” that he doubts Congress intended.
This marks the second time Roberts’ reading of the law has rescued Obamacare from itself. He saved it first in 2012 by upholding its individual mandate as a tax and not a penalty. Yet, even then, he questioned the law’s construction. He wrote, “We do not consider whether the Act embodies sound policies.” He later continued, “It is not our job to protect the people from the consequences of their political choices.”
If Roberts still believes this, his opinion in King v. Burwell is rife with irony. After all, if it is still not the Court’s job to protect the people from the consequences of their political choices, why must it protect them from the “inartful drafting” resulting from those choices?
