John Roberts, Unlikely Obamacare Savior

In King versus Burwell, Chief Justice John Roberts joined Anthony Kennedy and the court’s four more liberal members in upholding health insurance subsidies for people on federal exchanges. Plaintiffs had argued that the law meant only to provide subsidies for people on state exchanges. The controversy surrounds the language in the law stating that subsidies would be provided for “exchanges established by the State”. In ruling that the law does not preclude subsidies for people on federal exchanges, Roberts observed that withholding subsidies for such people would drastically reduce the number of insured people and seriously harm the insurance market. How could Congress have intended that, when the very purpose of the law was to expand access to insurance while reducing the cost?

Also, language elsewhere in the law suggests that Congress meant to include people on federal exchanges—for example, the law provides a means for people on federal exchanges to calculate their subsidy. Justice Scalia said that was not a problem; their subsidy would be calculated as zero. That seems a strange means of notifying people that they are ineligible for subsidies; it would seem simpler (if more blunt) to tell them “No, your state doesn’t give a crap about you, so neither do we.” Yet Justice Roberts recognized that viewed as a whole, the law includes everybody, which seems consistent with the stated intent of legislators and the president.

To be sure, the law is poorly written. Its opponents took advantage of that fact to argue that Congress purposefully wrote a law that in practice would undermine its expressed intentions. Nor does it seem likely that Congress failed to recognize the fatal problems that denying federal subsidies would create, as these problems were well-known and widely discussed; indeed they were part of the motivation for writing the law—to address problems of adverse selection and death spirals.

Perhaps still, the majority made a mistake. Perhaps they should have said that yes, the language of the law restricts subsidies to state exchanges, whether that was what legislators had in mind or they just made an error; but in any case, Congress needs to go back and rewrite the law if they really wish to do what they repeatedly and forcefully said they meant to do when they passed it. Criticizing the ruling, Peter Suderman insists that we cannot trust Obama to interpret Obamacare; maybe this is correct legal analysis even if it is not common sense.

Of course, the real motivation of this lawsuit was to eliminate Obamacare. Had the Court sided with the plaintiffs, that might well have happened, as the law only works if virtually everyone is covered, which cannot happen if low-income people do not receive help. And yes, as the law’s opponents have said, there are alternative ways to expand coverage, but they did not implement them in the eight years a sympathetic president was in office before Obama, nor do their smaller plans provide anything like the near-universal and comprehensive coverage that Obamacare offers. So even as I encourage Congress to write more competently, I do not hold the legislators’ failure against millions of vulnerable Americans—and I am glad that Justice Roberts did not, either.