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Obamacare: I Have Re-Named Thee, and Thy Name Is ROBERTScare


The Supreme Court has released its decision in King v. Burwell, which was a challenge to the Affordable Care Act’s (“ACA”) payment of tax credits to individuals receiving health insurance through an exchange established by the federal government.

Under the plain language of the ACA, individuals are only eligible for tax credits when they meet certain income eligibility requirements and are covered by an insurance plan that the individual “enrolled in through an exchange established by the State.”

Amazingly, out of the 900 pages of text that make up the ACA and the tens of thousands of pages of regulations promulgated under it, those four words – established by the State – spawned litigation that proceeded all of the way to the Supreme Court and threatened the viability of the entire act yet again.

Under the plain text of the statute, only individuals whose plans are covered by an exchange “established by the State” are eligible receive tax credits/subsidies. Many states (34 to be exact) decided not to establish an exchange of their own because of the financial imposition that would place on their state budgets, many of which are subject to a balanced-budget requirement. Under that scenario, the ACA provided that the federal government would establish an exchange in those states where a state refused to do so.

Obviously, for those seeking health insurance on the government-created marketplace in those states that did not have an exchange established by the State, the federal exchange was the only option. The exchanges established by the federal government, however, are quite obviously not exchanges “established by the State.” Therefore, common sense and a plain understanding of the terms of the statute would dictate that individuals enrolled in a plan on a federal exchange would not be eligible for the tax credit available to those individuals enrolled in plans on an exchange “established by the State.”

But, for Chief Justice Roberts, apparently those four words of the statute have no meaning. In fact, the Chief Justice writes, the phrase established by the State “may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal.” In short, under the Chief Justice’s interpretation of the ACA, the words “established by the State” do not really mean established by the State. Rather, under the ACA, “established by the State” actually means established by the State or not established by the State.

This strained logic would be unparalleled but for the Chief Justice’s previous opinion on the ACA. There, he said that the individual mandate was not a tax for purposes of the Anti-Injunction Act but was a tax for purposes of Congress’s Article I, Section 8 authority to enact it. Then, the individual mandate was both a tax and not a tax. Today, an exchange “established by the State” is both established by the State and not established by the State.

Interestingly, and perhaps fittingly given the demonstrably fallacious reasoning of his opinion, the Chief Justice cites a cartoon to highlight the fact that the ACA “contains more than a few examples of inartful drafting” and “does not reflect the type of care and deliberation one might expect of such significant legislation.” The cartoon quotes a legislator saying that the bill is complicated and that “we’ll just have to pass it to find out what it means.” No, that cartoon does not refer to the infamous comment of former-Speaker Nancy Pelosi.

If you thought that, you are mistaken, but your mistake is understandable given that the former Speaker is certainly a bit cartoonish. Nevertheless, one would think that such careless drafting might counsel in favor of a decision forcing Congress to rethink its hastily crafted catastrophe. But, this is the ACA we are talking about, so it did not. In fact, the Chief Justice actually used the artless efforts of these draftsmen as an additional justification to ignore the plain text of the statute.

A fair reading of this opinion leads to one indisputable conclusion: this is results-based judicial activism on the part of the Chief Justice and the Court. The Chief Justice even concedes this point in his opinion. “Here, the statutory scheme compels us to reject petitioner’s 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.”

But, wait, there’s more. The Chief Justice concludes that “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.” Put simply, “we do not like the result that the plain language of the statute yields, so we are not going to enforce it according to its plain terms.” That is textbook judicial activism and results-based reasoning.

Justice Scalia summarized the Chief Justice’s opinion this way: “The Court holds that when the [ACA] says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’

This is of course quite absurd.” A plain reading of the simple four-word phrase established by the State should have yielded an obvious result. Justice Scalia thought so. “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . Under all the usual rules of interpretation, in short, the Government should lose this case.

But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.” Yes, according to the Chief Justice and the current Court, all logic, reason, and proper judicial interpretation must succumb to the dictates of the ACA.

As Justice Scalia rightly notes, to say that the phrase “established by the State” somehow means established by the State and not established by the State strains credulity. Indeed, one must have “no semblance of shame” to derive this “impossible possibility” from the text of the ACA.

It is certainly true, as the Chief Justice stated, that context matters when interpreting statutory language. Nevertheless, context matters for a precise reason. As Justice Scalia notes, “It is a tool for understanding the terms of the law, not an excuse for rewriting them.” Yet the Chief Justice did precisely that.

The Court’s decision today vastly exceeds the appropriate judicial power given it by the Constitution, and it does so all in the name of upholding the worst intrusion into the lives of the American people that has probably ever existed. Make no mistake, the decision today, like the decision on the ACA before, is a tragedy.

Concluding that the Court had engaged in unbelievable activism yet again, as it had done the first time it decided the fate of the artist formerly known as Obamacare, Justice Scalia opined that “[w]e should start calling this law SCOTUScare.” But, while Justice Scalia was unquestionably correct on everything else in his opinion, he is mistaken on the name. “Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government.’” Well, apparently, the Chief Justice.

Obamacare, I have re-named thee, and thy name is ROBERTScare.


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