Supreme Court Upholds Obamacare Subsidies In 6-3 Vote
The era of legal challenges to the Affordable Care Act is over.
In a case that either threatened or promised, depending on your outlook, to bring the entire fiscal structure of the Affordable Care Act crashing down, the Supreme Court has ruled today that the subsidies provided by the Affordable Care Act are available to consumers regardless of whether they purchased insurance on exchanges established by the individual states, or the exchange set up by the Federal Government for states where the legislature declined to establish an exchange:
WASHINGTON — The Supreme Court ruled on Thursday that President Obama’s health care law allows the government to provide nationwide tax subsidies to help poor and middle-class people buy health insurance, a sweeping vindication that endorsed the larger purpose of Mr. Obama’s signature legislative achievement.
The 6-to-3 ruling means that it is all but certain that the Affordable Care Act will survive after Mr. Obama leaves office in 2017, and will give it a greater chance of becoming an enduring part of America’s social safety net.
For the second time in three years, the law t survived an encounter with the Supreme Court. But the court’s tone was different this time. The first decision, in 2012, was fractured and grudging, while Thursday’s ruling was more assertive.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for the majority.
The court’s three most conservative members — Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented. Justice Scalia called the majority’s reasoning “quite absurd.”
“The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery,” he wrote.
“It is up to Congress to design its laws with care,” he added, “and it is up to the people to hold them to account if they fail to carry out that responsibility.”
Justice Scalia announced his dissent from the bench, a sign of bitter disagreement. His summary was laced with notes of incredulity and sarcasm, which sometimes drawing amused murmurs in the courtroom as he described the “interpretive somersaults” he said the majority had performed to reach the decision.
“We really should start calling this law SCOTUS-care,” Justice Scalia said, to laughter from the audience.
(…)
Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan. “In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”
SCOTUSBlog’s Amy Howe summarizes the Court’s ruling “in plain English”:
Chief Justice John Roberts wrote the Court’s opinion, which Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan all joined. The Court acknowledged that, at first blush, the phrase “established by the State” does not appear to include the federal government. After all, the ACA specifically defines “State” as “each of the 50 States and the District of Columbia.” But other parts of the law, the Court explained, suggest that the “meaning of the phrase ‘established by the State’ is not so clear.” For example, one provision that defines who is qualified to purchase insurance on an exchange refers to an individual who “resides in the State that established the Exchange” – which on the plaintiffs’ reading would mean that no one would be qualified to buy health insurance on exchanges established by the federal government.
And if the phrase “established by the State” is in fact not clear, the Court continued, then the next step is to look at the Affordable Care Act more broadly to determine what Congress meant by the phrase. And when you do that, the Court reasoned, it becomes apparent that Congress actually intended for the subsidies to be available to everyone who buys health insurance on an exchange, no matter who created it. If the subsidies weren’t available in the states with federal exchanges, the Court explained, the insurance markets in those states simply wouldn’t work properly: without the subsidies, almost all of the people who purchased insurance on the exchanges would no longer be required to purchase insurance because it would be too expensive. This would create a “death spiral,” in which insurance premiums would go up and enrollment would go down. It is “implausible,” the Court concluded, “that Congress meant the Act to operate in this manner.”
Justice Antonin Scalia dissented, in an opinion joined by Justices Clarence Thomas and Samuel Alito that began by describing the majority’s conclusion as “quite absurd.” The tone only gets even more strident from there, with Scalia lamenting that “words no longer have meaning if an Exchange that isnot established by the State is ‘established by the State.'” And he concludes by complaining that the majority’s opinion- as it did three years ago in upholding the individual mandate – “changes the usual rules of statutory interpretation for the sake of the Affordable Care Act.” Perhaps, he suggested, “We should start calling this law SCOTUScare.”
Howe’s SCOTUSBlog colleague Lyle Denniston has a more detailed analysis.
Overwhelmingly, the Federal Courts that have considered this issue have sided with the Federal Government in their interpretation of the law. District Courts in the District of Columbia and Virginia both ruled in favor of the government, as did the Fourth Circuit Court of Appeals in the Virginia case, which is the one that the Court ruled on today.. A Federal Judge in Oklahoma, meanwhile, has ruled against the Federal Government, as did the Court of Appeals for the D.C. Circuit in a decision released on the same day as the Fourth Circuit decision that was ultimately voided when the D.C. Circuit granted en banc appeal in the matter. A fourth case is currently on hold in Federal District Court in Indiana. Those two cases are now obviously moot given the Court’s ruling today.
This is a long, detailed opinion that is likely going to be picked apart and digested by all sides in the days, weeks, and years to come. However, as a general first impression reaction, my thought is that the Court probably got it right here. There’s no question that the law was inartfully drafted, and indeed Chief Justice Roberts made mention of this while reading his opinion from the bench today. At the same time, as Roberts says at multiple points in the opinion, the Court’s job in a case such as this is to look at the law as a whole rather than merely the sentence or two that is creating a particular legal issue. When they do that, courts have consistently held that statutory language should be interpreted in a manner that upholds the overall statutory scheme that Congress intended to create. The only real caveat is that this interpretation should be a reasonable one and that it would be improper to read things into a statute that aren’t there or to ignore certain parts of a law that are plainly there. In that regard, I think the Chief’s closing paragraphs are instructive:
Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994). In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.
Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939). For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. 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. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.
As an aside, I have to smile every time I see the citation in the last paragraph. A case decided 212 years ago is still being cited today, because that’s how important it was.
Justice Scalia’s dissent is, understandably, quite strong. He accuses the Court of essentially ignoring the plain-meaning of the statute in his usual florid language, remarks at one point that the law should be called “SCOTUSCare” given the fact that the law has been upheld by the Court twice now, and even manages to sneak in some Shakespeare. It’s a serious argument and it deserves serious consideration, but in the end it seems to me that the majority has the better legal argument here. As Chief Justice Roberts noted, Courts have always been deferential when it comes to statutory interpretation in order to ensure that Judges are not substituting their judgment for elected representatives. The fact that there is a drafting error, or that language in a bill that was more than a thousand pages long is inexact in some way should not necessarily mean that a Court must interpret a law in a manner that brings down an entire statutory scheme. The alternative would be a world where the lack of a single word, or an in-artfully drafted sentence, would bring down an entire law, and that’s never been the way the Courts have interpreted statutes. In my past comments about this subsidy issue, I’ve been somewhat sympathetic to the argument of the Plaintiffs in this case, but reviewing the pleadings and the oral argument in this case have caused me to reconsider that position. I’m still not a fan of the PPACA, and I think that it’s going to create long-term economic incentives that will make health care more expensive rather than less expensive, but that is a policy matter not a legal one. As it stands, it seems clear to me that the Justices in the majority got it right.
In addition to the legal arguments, this case and its potential consequences quickly became a huge political issue. Had the Court ruled the other way in this matter, it would have meant that as many as six to eight million people would have lost their subsidies for health insurance. For most of them, this probably would’ve meant that they could no longer afford health insurance, thus pushing them back into the ranks of the uninsured. A ruling such as this also would have likely increased premium costs across the board, which would have caused any healthier, younger people to drop insurance altogether and make the risk pools even more, well, risky. In a short period of time, the entire fiscal structure of the law would have been in peril. Because of this, the prospect of what to do if the Court struck down Federal subsidies was a hot topic of discussion. Polling leading up to day was showing that the vast majority of Americans believe that Congress should fix the PPACA if the Justices rule for the Plaintiffs in King and that a narrow majority of Americans. As a result, Republicans on Capitol Hill have been working behind the scenes to try to come up with some legislative solution. Additionally, the issue has already become a subject of heated political debate between President Obama and Congressional Republicans. Now, with the Court upholding the decision all of that is avoided.
This is the end of the legal challenges to the Affordable Care Act.
It started virtually from the moment the law was signed by President Obama as a number of states filed challenges to the Constitutionality of the law’s mandate that all person’s not otherwise covered by employer-provided insurance purchase their own policy or pay a penalty to the Internal Revenue Service. While several lower courts agreed with the argument that this mandate was not supported by the powers granted to Congress under Article I, Section 8 of the Constitution, the Supreme Court ended up sustaining the law not under the Commerce Clause but under Congress’s Taxing Power, which is virtually unlimited. After that, the focus of the challenges shifted to specific requirements of the law, including the mandate from the Department of Health and Human Services that employer-provided insurance include coverage for contraceptives. When business owners claimed that this requirement violated their religious beliefs, another series of lawsuits were filed that primarily relied on the Religious Freedom Restoration Act, which effectively operates to give people exemptions from generally applicable laws if abiding by them would violate their religious beliefs. Last year, the Supreme Court ruled in favor of religious employers such as Hobby Lobby in a ruling that remains controversial and seems likely to become an issue in areas related to same-sex marriage. With this outcome, there are very few legal issues remaining regarding the PPACA and certainly none that would have the potential to undue the case like this case and the case related to mandates did. In some sense, what the Court is saying today is that they are not going to be the ones to strike down Obamacare. Whether legal activists will get that message remains to be seen.
Politically, of course, this is far from the end of the road. Republicans will continue trying to fight the law, candidates for President will make their promises about repealing the law, and Congress itself will probably try to do just that at least once more before the 2016 elections. Objectively speaking, I don’t believe that there is any more likelihood that the law will be repealed now than there was at any point since the law was passed in 2010 and President Obama won re-election in 2012. It’s possible, if not likely, that at some point in the future we may see the law reformed in some way to fix problems that crop up, but that is a different matter from repeal. As a political and legal matter, the PPACA, also known as ObamaCare, is here to stay.
Here’s the opinion:
First: Yay!
Second: The GOP should go down on one knee and thank the Supreme Court for saving their bacon. Now they can keep their hating on the Affordable Care Act without worrying about having to actually do anything.
Presuming the common analysis of this situation is true… it’s frustrating to imagine that due to this outcome, Democrats can’t use this against Republicans. I guess that in the aggregate, voters simply don’t grasp hypotheticals?
Still, I’d enjoy seeing “How do you feel about the decision?” as the new gotcha.
Biggest power grab by a branch of government ever! 🙂
King v. Burwell was the equivalent of Carson vs. Here’s Johnny Portable Toilets, but with deadly consequences for millions of people.
@Argon: Yes. Establishment GOPs all over the country are looking to see if anyone is watching, and if not heaving a huge sigh of relief.
So the law doesn’t necessarily mean what it says, but what the Powers That Be say it means. Until they change their minds, at which point the prior explanations of what the law means are no longer Operative, and the new explanations are Operative. Until they, too become inconvenient.
Will there at least be an exception to the “ignorance of the law is no excuse” to include “I followed the letter of the law, but missed the hand-waving that changed what it meant?”
Every time I see an official photo of the justices (like the one above), I immediately flash back to the Match Game.
“The ACA is soooooo large….”
I don’t think the case was absurd. It’s never absurd to argue that a law should be interpreted as it was written (indeed, that was the basis for the entire Platinum Coin Caper a few years ago, only with even less logic). But I think the Court reached the correct decision that the language was muddy enough and the intent of Congress clear enough to not overturn it. This is the tendency of the Roberts Court: when possible, defer to the legislature. As someone noted on Twitter, this is the Court saying, “No, we are not going to repeal Obamacare for you. Stop asking.”
Marbury v. Madison is one of the greatest pieces of legalistic jiu-jitsu whatever. Basically, the Supreme Court knew that if they tried to actually impose an order for someone to actively do something everyone would have said: “yah, you and what army?” So they came up with an argument that it was their supremacy that meant why they would do nothing. And the other two branches fell for it.
@Modulo Myself:
Actually, the current research is showing that expanding insurance does not save lives. It helps people not get financially ruined by healthcare bills. But it doesn’t save lives. The previous estimates of how many people died because of a lack of insurance were estimates and theoreticals. The hard data from Oregon is showing that they were massively exaggerated. If lack of health insurance killed as many as the previous researchers had claimed, the effects in Oregon would have been *really* obvious.
@Jenos Idanian #13:
No, dummy, the law means what the legislative history says it means when the wording is confusing. Thus forever. Part of my job in the old days at Wilmer Cutler was helping put together legislative histories. That was in 1972, so that notion’s not exactly radical.
There was no case here. Your side never had anything, which must be a very familiar feeling to Republicans by now.
@Hal_10000:
The Oregon study covers a two year span. We’re talking about trying to give access to health-care for life. There’s a huge difference. Anyone who thinks that having access to regular and affordable medical care (which is really only possible via insurance, Medicare, or Medicaid) from birth to death will not have tangible results on health is out of their mind.
There has been noise on the right questioning (without specifically mentioning it) Marbury v Madison and that people have a right to ignore Supreme Court decisions. This is particularly strong with the upcoming SSM case. Just today Huckabee railed against unelected judges.
You know the Supreme Court hears these rumblings which I suspect why M v.M was specifically cited. A little preventive judging.
Heh, I called it.
But frankly, the result was likely since oral argument, when Kennedy was clearly showing that he had problems with a result that would wreck the health insurance industry in many states. Scalia and Alito both suggested that Congress might save the day, but that suggestion was never anything butlaughable, and Congressional Republicans’ contortions since then just reinforced that.
I had thought that while all the liberals woud agree that the government would win based on the interpreation of the statute as a whole, that Roberts and Kennedy would go with the Chevron deference approach, which would have made for a weaker decision. But no., Roberts decision slams the door on any future nonsense like a Republican President directing the IRS to change their ruling concerning the subsidies.
Scalia’s tears are SWEEET!
Verilli is DA MAN when it comes to Supreme Court advocacy. That seems clear now. (He won another victory today for the FHA). I have a feeling we know who Clinton’s first Supreme Court nomination might be.(I’m calling that too).
Had the Republicans won here, it would have been fun to go after the second amendment, which was ratified by the states with fewer commas and different capitalization than what was passed by congress. A trivial distinction, but if one reads the amendment process carefully, no version of the second amendment has passed all the hurdles for adoption.
(Just figured I would tie this to the gun control threads)
@stonetools:
Let us hope that this is a mere appetizer for the main course of Scalia’s tears, which will come with the SSM decision…
(part of me hopes that Scalia will write an opinion that reads simply “What did I say would happen in my dissent in Windsor? Well that happened.”, leaving everyone to wonder if that was a dissent or a concurrence.)
@Modulo Myself:
That was two years ago. The most recent study continues to support the idea that health insurance access does not improve health, at least not nearly as dramatically as was claimed. And you’re moving the goalposts quite a lot. We were told that people were dying in the streets, not that they were dying in the long term.
You don’t have to be insane to think health insurance won’t improve outcomes that dramatically because health insurance is not health care. It’s a financial instrument. People without insurance usually get healthcare. When I worked in the industry, the practices I worked for wrote off millions in bills from people who couldn’t pay them.
@Modulo Myself:
Wow, that was actually a thing.
I suppose a “holy crap” would be appropriate in a couple ways…
@Hal_10000:
Dunno how the heck you get that out of that article.
What do you think happens whensomeone doesn’t use preventive care or receive insulin for say, diabetes? But whatevs.
Time to celebrate, and ignore folks who think the poor should just learn to live without access to healrth care.
People without insurance usually get healthcare.
But they don’t get regular healthcare. They don’t go to the doctor twice a year. They don’t get bloodwork, lab tests, or have access to affordable meds. They don’t have any help until something terrible happens and then they get healthcare plus bankruptcy.
The idea that health insurance is of no use to one’s health is completely contradicted by the fact that it’s so important to people to have. You’re basically saying that regular healthcare and good health are of no use to anybody.
Personally, I have both bad asthma and a family history of heart disease. My father was diagnosed with heart disease in his early 40s and died when he was 55. I’m in my late thirties. I exercise a lot and have my cholesterol and blood pressure monitored. The price for my Advair is 200 or so a month, without insurance. I need the meds so I can run 10K or swim a mile or bike 30. The price for bloodwork where I live (I found this out through a billing error) is around a thousand, not counting a doctor’s visit, which would be another 500 or so. (I live in NYC.) That’s a big sum for many people to pay a year simply to be able to exercise and monitor their health. But I have to assume that though I will eventually die it’s all adding to my health and saving my life for an undetermined amount of time.
Is it dramatic? No. But it’s real. Anyone who is waving hands about how insurance is not health care and therefore doesn’t really matter is playing games. Good health costs serious money for many people and they can’t afford it without health insurance.
@Jenos Idanian #13:
The Court’s ruling is entirely consistent with what the law says, if you are willing to consider the law as a whole.
In fact, this ruling is really a huge deferral to the legislature. As has been pointed out, the meaning of the word “State” in the law is not entirely clear, so the Court, as it has done for decades, must consider Congress’ overall intent in its ruling. Given that the assertion Congress would deliberately write a law in a way that would break it is ridiculous, the Court was correct in upholding the law as Congress intended it to operate.
This is not what I’m saying. I’m saying that the effects are not nearly as dramatic as the claims that “hundreds of thousands” or “millions” of people were dying because of a lack of health insurance. And improving someone’s health or saving them from financial ruin are not nothing. It’s possible to believe that health insurance is beneficial without buying into the kind of hyperbole that is so casually slung about when people accuse the Republicans of wanting to kill millions of people.
The complicating factor in the Oregon story may be the Medicaid is pretty crappy insurance and has a diminishing list of doctors who accept it. So I want to see what larger studies show. The reason it’s important is because it’s almost a perfect methodological setup.
@Mikey:
Now Jenos has to go trotting back to whatever right-wing website does his “thinking” for him and fetch back a whole new (but equally absurd) objection.
@Hal_10000:
That is flatly untrue.
Do they get timely and effective healthcare? Because that’s the only kind that counts.
It is firmly established that there is a compelling state interest in universal health care coverage for all Americans. Hopefully we’ll take the next step in my lifetime and expand Medicare to cover all citizens, with “Insurance” reserved as an add-on employee benefit or personal purchase just as supplements are for our older citizens today.
Well done SCOTUS.
I wish I could remember what it was now, but I recall reading about one particular mistake in Scalia’s written opinions that said the exact opposite of what he meant. I’m curious if he thinks he should be held to the same standard?
To be honest, though, I’m somewhat sympathetic to the idea that, for the amount of time, effort, and money (e.g. bribery) that goes into a bill, it would be nice if it was carefully written. And if it’s difficult to carefully write something that is 1000 pages, then you should be more concise and do it in 100.
@Hal_10000:
Republicans don’t, of course, actually want to kill millions of people.
But if millions of people just happen to die for lack of health care, Republicans don’t, of course, really care.
@Franklin:
He erred in EME v. Homer City Generation with respect to his citation of Whitman v. American Trucking Assns., Inc
@Jenos Idanian #13:
Well, Scalia should know about that meaning stuff. For years he and other so-called Originalists have seen fit to ignore the “a well-regulated” wording in the Second Amendment. Conservatives generally find that to be quite acceptable.
@Franklin:
What I found more interesting was his statement in his majority opinion in Utility Air Regulatory Group v. EPA, tendered just a short year ago. To wit:
followed by today, with his complete reversal (IMO) of that assertion in his dissent.
He has become a ranting ideologue whose views on the law are situational, at best. What he likes is OK; what he dislikes is not OK, even when both scenarios fall under the exact same tenets of law.
We won’t even get into his exceptional Commerce Clause backflip in Gonzales v. Raich.
It’s sad, because the man is undeniably brilliant, but has been reduced (or more to the point – has reduced himself) to the judicial equivalent of the old guy yelling at kids to get off of his lawn.
@HarvardLaw92:
Scalia is the greatest example of the man who takes deep pride in his humility.
By the way, was it just last week we were discussing whether Mr. Obama was a lame duck with no influence? He just got his trade authority, (although I don’t like what I see n WikiLeaks) and his Obamacare legacy is now secure. Next we’ll get SSM and an Iran nuke deal.
This is becoming a very consequential presidency.
@Hal_10000: Many states do not offer the medicare option for those who can not afford the exorbitant rates of the “Affordable” health plan. That leaves millions out in the cold.
The best plan would have been to enroll people who needed health insurance into medicare. That would have not required a new, expensive, and faulty website.
They also need to get the IRS out of it. That’s the last government agency that you would want in charge of your health care.
“If you like your health insurance plan you can keep it”
“You can keep your same doctor”
@stonetools:
I like Don, but it depends on the makeup of the Senate. If we take control of the Senate and the White House in 2016, I don’t want a Don Verilli sitting on the court. I want another Brennan, Harlan, Murphy or Warren.
I’ll take Don if he’s what I can get, but I’m not really interested in expending a once in a generation opportunity on making the court more congenially moderate. I want it leaning so far to the left that it can see China from its house. That’s how you restrain a House of Representatives that isn’t likely to be anything but whackadoodle far-right for the foreseeable future.
From a NY Times article from a couple of days ago:
Maybe Chief Justice Roberts is getting prepared for President Clinton replacing Justice Scalia (81 in 2017) and Justice Kennedy (also 81 in 2017)? Can’t be that fun spending your next 20 years writing dissents?
@Franklin:
Think about this way: a law, especially an administravie law, is less a text than basically an algorithm telling various bodies what to do in various circumstances. I don’t know if have written code, but the idea of having a piece of code that is completely bug free is beyond utopia..
@Tyrell:
Medicaid option, and those states do not offer it because they refused to expand Medicaid. The people you voted for at the state level screwed you. You’ll have to take that up with them.
I agree that ending the employer tax credit for health insurance costs and expanding Medicare to cover every single person in the country would have been the better way to go, but it wasn’t an option. You do what you can do with what you’ve got.
@Tyrell:
Yes, that would have been best. Too bad we have these creatures called “Republicans” who make sensible things impossible.
@Tyrell:
Why not? Your statement shows the problem – why are those states stepping up? Seems to me instead of whining about the ACA, citizens living there should be asking why their state isn’t interested in helping its own…..
@Jenos Idanian #13: Jenos–you don’t know diddly-squat about law, obviously. If you had had a class in legislative interpretation, you would know that this “what you meant, not what you put down on the page” is bog-standard. There’s the assumption that no one would have wanted a law with a ridiculous result to have come into effect, so we look for a reasonable interpretation, instead.
And it you don’t like it, you can always yell at several hundred years of Common Law and our historical experience of what happens when you DON’T allow for a little give-and-take. I suggest you look up the history as to why the Courts of Equity were originally formed, genius.
@HarvardLaw92:
Did you recall this independently or did you know it was actually cited in Roberts’ majority opinion today?
“Here, Antonin, are your own words, with which I am symbolically poking you in the eye…” –Roberts
I didn’t like the ACA because I didn’t think it went far enough – single payer. I could never understand why insurance companies should be involved in health care. They are nothing but bankers who contribute nothing to health care and often get in the way.
@Mikey:
I haven’t read Robert’s opinion yet. I ran across it last year in a piece Abbe Gluck wrote for SCOTUSblog while I was researching the issue.
@Franklin: Nah, because these huge laws are always never put together until the fifty-ninth minute of the eleventh hour before the deadline, and no one ever reads them as a unit for contradictions and editing and “hey, wait a minute, this looks ambiguous.” Heck, it’s been 20 years since they passed Hatch-Waxman and they still haven’t gotten all the bugs out of it (cough Section VIII use code problems cough).
If you want fun, just try figuring out some of the deadlines that H-W mandates.
@HarvardLaw92: My first thought was “wouldn’t it be hilarious if Roberts put that in his opinion in King v. Burwell” and no kidding, there it is on page 3.
Coincidence? Maybe…but I sure as hell hope not…LOL
I do take a little satisfaction from it not only being upheld, but not even relying on Chevron where a future administration could reverse the decision.
I wonder, will any of the Republicans who tried to rewrite history admit they were full of it now? Seriously, their claim was essentially that not only did the card say Moops, but the Moops were real. This should be a source of embarrassment to anyone involved on the GOP side.
@Hal_10000:
I’m glad you trust this article, because now you can change your view of Medicaid in light of this:
So another right wing talking point refuted.
As to your comment about non-insured people having access to health care, I was in circumstances where I was without health insurance for years, and you.are.wrong.
Unless you’ve walked the walk, you don’t know , so don’t talk about what you don’t know.
@stonetools:
I think it’s a straddle here. People did have access to urgent care without respect to ability to pay, but in the larger spectrum, that doesn’t really mean a great deal. It’s of little import to quality of life that you can’t be turned away from an ER, etc. when that only applies to life-threatening situations, in which you are simply stabilized and sent on your way.. You’re kept alive – which validates Hal’s point, but that means little to your actual quality of life – which validates your point.
@Ron Beasley: Having private insurers facilitate care and payment works pretty well in Germany’s universal multi-payer system. But they are more tightly controlled and the charges for treatment are standardized throughout the country–you don’t get charged differently for something based on where you live or who your insurance company is.
I’m curious if conservatives like Jenos would’ve ACTUALLY wanted Obamacare struck down.
Republicans woudl then have to fix it. But they would have to fix it without having it look anything like Obamacare.
The easiest way to do that, probably, would–as a temporary measure–start expanding medicare.
The temporary part would quickly disappear.
Scuttling Obamacare would’ve placed us on a torturous path to single-payer. The journey wouldn’t have been fun, but it would’ve gotten us there quicker.
Ah, well, I’ll take the longer route, with a lot more people on insurance in the meantime.
@humanoid.panda: As a coder, yes that has occurred to me before (the parallel between law-making and computer algorithms). But I think my conciseness argument still holds true: the shorter you can make the code, the less errors there are!
@Tyrell: “The best plan would have been to enroll people who needed health insurance into medicare.”
I agree. But you have to realize that the US is a deeply corrupt country. Politicians need money to campaign, and the money is more likely to come from wealthy donors than from the rest of us. As a result, social reform measures pass only when some important business interest benefits. The food stamp program was backed by the agricultural industry. The Earned Income Tax Credit relieves Walmart and McDonalds of the necessity of paying subsistence wages. And so it goes. President Obama realized this, I think, and Rahm Emmanuel certainly did. They got the health insurance industry, the pharmaceutical companies, and the American Medical Association to support the ACA by promising (and delivering) big profits. I wish things weren’t this way, but they are and we have to live with it.
@HarvardLaw92:
You’re not even kept alive, necessarily. You’re stabilized. You’re only kept alive for so long as it takes to get you out of the hospital and back on the streets. If you drop dead a day later, hey, not their problem.
@Rafer Janders:
True – the point was that you’re not going to die right then and there, and some of those folks probably don’t drop dead the next day either. They return to a hell of poor health and then wait to die. The image often gets presented as something like “John was having a heart attack, and the hospital refused him treatment / turned him away to die”. That’s obviously erroneous.
All things considered, what we have now is a vast improvement. Not nearly good enough, but an improvement nonetheless.
@HarvardLaw92:
Interesting. Who would you like to see considered? I’m not sure how the liberal superstar judges are, although I’ve heard good things about legal scholars like Harold Koh.
@Scott:
Indeed, Alabama Chief Justice Roy Moore has pretty much said exactly that (and acts as if Marbury doesn’t exist).
@Neil Hudelson:
I suspect what happens next is that the recalcitrant Republican governors start taking some of that Medicaid money. Once that wall breaks, we’re on our way to single payer.
Years ago, when I used to argue this with Dave Schuler at his site, I always said the details were largely irrelevant because what was accomplished was putting health insurance in the government’s “In” box. Once in, it would stay in and from that point on we’d begin discussing the issue in more practical terms.
Later than I expected we have now reached the point where discussions will have to become practical, rather than impotently symbolic – the preferred form of GOP “action.” In fact, “Medicare for all,” has become the default alternative. You even see conservatives talking about it. And that is national health.
I’ll predict that within a decade we’ll have Medicare for all. We’ll get there in the messiest, least efficient way possible, of course, but I think we’ll get there.
@stonetools:
I tend to want justices to come from the appellate courts. Not a huge fan of lifetime academics being appointed.
In that light:
Jacqueline Nguyen
Paul Watford
Marsha Berzon
Jane Branstetter Stranch
Bernice Donald
Karen Nelson Moore
Patti Millett ***
Nina Pillard
If I had to choose one out of the bunch, it would be Patti Millett. I love Marsha Berzon, but she’s old, and I want these seats populated by young, spry liberals who’ll camp out in them for the next 30 years.
“. The reason it’s important is because it’s almost a perfect methodological setup.”
Sort of, but not quite. When you look at the control population, they had surprisingly good numbers. The HbA1c levels in the control group were almost normal. It will be difficult to show much difference. Also, the total numbers of people in the study who had the appropriate illnesses we would like to study were surprisingly small. There are lots of other studies looking at this. What you see is that people can get emergency care*, but they don’t get follow up. Outcomes are then worse.
*There was a nice Health Affairs article a couple of years ago (paywalled but can probably find if you want) that found in spite of laws prohibiting dumping or just not seeing uninsured with emergencies, some hospitals are doing so.
Steve
@HarvardLaw92: It also doesn’t help in cases of things like cancer, where if you leave it alone you just get a worsening situation. It’s not an immediate emergency but it actually is a long-term emergency, if you see my point.
(Speaking of worsening situations, has anyone else been following the Greek default situation? Syriza doesn’t seem to understand the concepts of negotiation.)
Why not just give the American people the option of enrolling in the federal employees plan, with over 200 options ? (probably the same plan these “Supreme” Court judges are on )
@grumpy realist:
I do, and I agree. I didn’t intend by any stretch to imply that limited access to emergency care was sufficient. Merely that it was better than nothing at all. It was an incremental improvement at the time.
PPACA is another incremental improvement, but still far short of the mark. I tend to agree with the other folks here – single payer is both overdue and probably an unavoidable eventual outcome, and hurray for that when it happens. We should already have it, but in the interim anything is better than nothing.
@Tyrell:
This is preferable to simply expanding Medicare how?
Tell me again why we wasted all this time and money deciding the obvious?
The SCOTUS never should have even taken this case. That they did is only an indication of their partisan leanings.
@Ron Beasley: ” I could never understand why insurance companies should be involved in health care”
It’s basically because if they’d try to cut out the insurance companies, the companies would have poured unlimited resources into killing the bil — and they would have won.
The trick with passing a health bill was not coming up with a really great idea — it was coming up with something that would help a lot of people that wouldn’t be stopped dead by those completely invested in the current system.
It’s possible that the next iteration will be better… but it was far more important to get something passed than to get something perfect… as frustrating as that is.
@C. Clavin:
They had little choice. There was already a split between the 4th Circuit and the DC Circuit on this issue. Given especially that the DC Circuit’s rulings are controlling with respect to federal agencies located in DC, and the DC Circuit ruled in favor of the plaintiffs, it would have been a disaster for them to deny certiorari.
@C. Clavin:
They would have been shirking their responsibilities had they not.
@Steven L. Taylor:
@HarvardLaw92:
Nonsense…they could have denied to hear it on standing alone.
@C. Clavin: So, you think having two appeals courts split, and leaving the potential for more lawsuits on this topic would have been preferable?
Either I am utterly missing your point or you are confused about the way these things work.
(I would argue that this is actually precisely the kind of case we need a Supreme Court for).
@C. Clavin:
Had they done so, the DC Circuit’s ruling would have stood as being operative, and become controlling precedent for Treasury and the IRS – which would have defunded subsidies on the federally run exchanges.
I’m not sure that you understand how this works.
@Steven L. Taylor:
@HarvardLaw92:
It never should have been taken up by ANY court. There was never any valid standing. And simple drafting errors like this are routinely fixed by legislative bodies.
At least they got it right. And Scalia has made it even clearer that he should be impeached.
@HarvardLaw92:
My liberal wet dream would be that Clinton gets four choices ( Ginsburg, Breyer, Kennedy, Scalia). What’s interesting is that if she picked from your list, we would get a female majority SCOTUS. Wouldn’t that just blow the minds of the wingnuts….
@C. Clavin:
One of the plaintiffs in Halbig v. Burwell, which is actually the ruling we’re discussing (it was combined with several others for hearing at SCOTUS) had standing under APA to seek redress. Let it go.
@stonetools:
I selected mostly women for multiple reasons:
1) It’s harder for senators to be mean to them at questioning, and they are more likely (as old white men) to show deference to a female nominee.
2) I LOVE the idea of a majority female Supreme Court.
3) Obviously, all of these women are also committed liberals whose powers of reasoning and eloquence can blow the walls off of brick buildings, Patti and Nina in particular. When you’re liberal enough that conservative senators are so afraid of your nomination to an appeals circuit, it causes a change in Senate rules just to get you confirmed, you’re the right stuff.
@C. Clavin:
Scalia dissenting in National Federation of Independent
Business v. Sebelius:
Scalia dissenting in King v. Burwell:
The man is making a mockery of the Supreme Court for partisan ends.
Re. health insurance not saving lives…there’s a case ongoing about a man named Luis Lang. He needs an eye operation but doesn’t have insurance nor the 30K to pay for it. Without the operation he’s going to go blind.
Health Insurance in his case won’t save his life. It will just keep him from needing to buy a seeing eye dog.
So I guess all of you who think health insurance doesn’t save lives are right. He’ll still be alive, just blind.
Happy with that?
@MikeSJ:
Lang is particularly relevant in that he was a lifelong Republican (AFAIK) who chose not to obtain insurance under PPACA, but wants it now that he actually needs it. He’s an inadvertent (and sad) poster child for Republican hypocrisy on this issue.
@stonetools:
I’ll add as well:
Jacqueline Nguyen – She would be the first Asian nominee to the Supreme Court, AND she’s a woman. That’s the double whammy right there. She’s the one I want to be nominated to replace Scalia.
If we REALLY wanted to have fun with the old white hairs in the Senate – Mary Yu, Associate Justice of the Washington State Supreme Court. Female, AND Asian, AND Latino, AND gay. I can almost hear the heads exploding.
I went over to the Volokh Conspiracy (otherwise know as “Sociopath Central”). Is it possible to die of schadenfruede? Jonathon Adler:
According to Adler, Chief Justice Roberts was on Obama’s team. Ponder that for a moment-the most conservative Chief Justice in decades, the man who penned Citizens United and Shelby County vs. Holder is on Obama’s team? That ,folks, is what immersion in libertarian ideology can do to the human brain.
A lot more hilarity on site.
I’m sorry, just one quote from the Volokh Asylum. Randy Barnett:
Just keep on marching into those cannons, boys. Surely you’ll win next time!
@stonetools:
I believe it says something about the progress we’ve made that even Randy Barnett(!) calls for “repeal and replace”. Whatever reforms are proposed in the future, they will be to expand coverage and improve the law. There’s no going backwards now, absent some truly horrific Republican majorities.
@HarvardLaw92: The DC ruling was vacated and the case was awaiting en-banc hearing when cert was given by SCOTUS.
http://talkingpointsmemo.com/dc/dc-circuit-grants-en-banc-halbig
@humanoid.panda:
Which is no guarantee that it would have been overturned.
@HarvardLaw92:
Not a guarantee, but most left leaning pundits were treating as a near certainty. That may not have been correct, but it’s the basis for some of the questioning as to why the Supreme Court took the case without a circuit split.
In 2009, my brother, then aged 35, had a massive epileptic seizure in which he stopped breathing and had to be revived. If his wife hadn’t been there, he would have died. He was rushed to the ER where he was hospitalized for several days, and it apparently led to a stroke requiring him to walk with a cane for some time afterward.
It was his first seizure since he was 12. He’d been taking Tegratol ever since, which seemed to work for him all those years. The reason he started having seizures again as an adult was that he’d needed a change in his medications. But he didn’t know this, since he hadn’t been seeing a doctor. And the reason he wasn’t seeing a doctor was that he couldn’t get insurance on account of his preexisting condition.
So yes, I feel pretty comfortable stating that insurance, and Obamacare in particular, does save lives.
(My brother, incidentally, is convinced Roberts’ pro-Obamacare rulings are partly influenced by his being epileptic.)
@David M:
Who can say? Cert only requires 4 votes. Maybe the liberal justices wanted the case? I’ve learned not to try to figure out why they do what they do.
@Kylopod:
I didn’t know that.He wouldn’t be the first conservative who decided for reality and against ideology when reality impinged on him or those close to him( see Rob Portman and gay marriage).
@HarvardLaw92: Given that the panel has 8 Democratic appointed judges and 3 republicans, yes, it would have been reversed. More importantly, the panel vacated the decision, so at the moment when cert was given, there was no circuit split.
I think the four conservatives who voted to take cert. did so because they felt it was a last chance to gut the ACA. They could see it was really taking off and they knew that had they waited, it would have reached the court in the heart of the presidential campaign. I think that’s why they took cert., not because of any thought of a possible circuit split. ( Of course we can’t say for sure, but that’s my guess) . I think the four were Kennedy and Scalitomas.
Once push came to shove, Kennedy bailed because he was concerned about the health care industry. I don’t think Roberts wanted anything to do with the case, and he appears to have slammed the door on any further judicial challenges to the ACA. Essentially he said, ” You want to overturn Obamacare? Win some elections and pass some laws.”
Now can the Republican Party truly run on abolishing health care subsidies to millions of red state voters in 2016, especially when those voters aren’t distracted by their hatred of the black man in White House? I guess we will find out.
Just loving the autoplay ads here — particularly good when two or more of them start playing at the same time! Finally, something more useless, self-defeating and annoying than Jenos!
@humanoid.panda:
The active panel has 7 Democratic appointees – Garland, Rogers, Tatel, Srinivasan, Millett, Pillard and Wilkins, (not all of whom are as liberal as you want to believe that they are) – and 4 Republican appointees (Henderson, Brown, Griffith and Kavanaugh). Randolph is on senior status, but participated in the original ruling, so he would participate in the en banc panel as well, making it 7 to 5.
One of those Dem judges defects and you have a 6 to 6 ruling, which as I’m sure you know results in the original ruling standing as issued. It’s not necessarily the slam dunk that you want to believe that it would have been.
That having been said, a circuit split is not required for SCOTUS to exert jurisdiction. It’s merely traditional. They can co-opt when and how they like in any instance where a petition for certiorari comes before them. In this case, they did. In that regard, this is somewhat of a specious discussion.
@wr:
Zappos likes to try to sell me the shoes they just told me they don’t have in my size. Amazon keeps trying to sell me my own books. And for weeks I was pursued by a briefcase I’d already bought.
@Hal_10000:
Why don’t you and Jenos do lunch, you will have much to talk about…
@michael reynolds:
“You can always count on Americans to do the right thing – after they’ve tried everything else.”
-Winston Churchill
@Hal_10000:
Jenos was probably one of them. He likes to brag about being a free-loader on the system.
@michael reynolds:
Future Republican President:
” In order to correct the many defects of the ACA- program which the Republican Party had absolutely nothing to do with- I propose a program which the Republican Jaocb Javits first proposed in1970-I propose… Medicare for All!”
And every Southerrn white voter who opposed the ACA because the program was proposed by a black man will cheer loudly…
@HarvardLaw92:
What else are internet forums for?
@michael reynolds: I’ve had equivalent experiences. I want to laugh it off as the poorly-made algorithm it is; something I just bought is exactly what I’m least likely to buy again soon. And yet…
There’s an episode of Doctor Who in which an alien possessing a character’s body starts repeating everything she hears. After a while, she develops the ability to speak in unison with the other characters. I won’t give away the logical next step… but in short, the advertisers win.