By a 6-3 decision, with Chief Justice John Roberts writing the majority opinion, the Supreme Court has decided that federal health-insurance subsidies will still be available even in Georgia and other states that refused to set up their own health-insurance exchanges.
By affirming the legality of those subsidies, the court wisely sidesteps what would have been total chaos in the insurance market and in Washington. And while large chunks of the Republican base will be deeply disappointed, I suspect that a lot of GOP politicians in Washington and here in Atlanta are breathing a big sigh of relief. The ruling allows them to continue to pretend to have a better alternative to ObamaCare, without having to explain what that alternative would be or attempt to pass it.
The Supreme Court also sidestepped doing serious long-term damage to its own credibility. The argument put forth by opponents of ObamaCare was obviously bogus on factual and legal grounds; nothing in the congressional debate or subsequent implementation of ObamaCare supported the narrative they attempted to weave.
If the Court had used that specious argument to overturn a major policy initiative, setting off all kinds of economic, political and human turmoil in the process, it could no longer be viewed as a dispassionate, apolitical judicial entity but as just another partisan institution. Chief Justice Roberts, to his credit, refused to be drawn down that path.
In reading Roberts’ majority opinion, I’m struck by the importance that he gives to the concept of fairness in reading and interpreting the Affordable Care Act. He writes, for example, about seeking “a fair construction of the statute,” observing that “A fair reading of legislation demands a fair understanding of the legislative plan.”
The implication is that opponents of the act are giving it an unfair reading, a reading that is totally at odds with the rest of the legislation. That is clearly the case, and Roberts’ opinion is actually a pretty thorough smackdown of those who attempt to make that argument.
It goes unmentioned in his opinion, but nowhere in the congressional record is there any hint that subsidies would be available only in states that established their own insurance exchanges, as opponents now try to claim. Likewise, when Georgia officials decided several years ago not to create a state insurance exchange, nobody — Republican or Democrat — raised the possibility that as a result of that decision, Georgians would be barred from receiving federal subsidies. The same is true in the debate in every other state across the country: Nobody, including the law’s opponents, understood it the way that opponents now claim it was written. It was only much later, upon the discovery of the words “established by the state” in an obscure part of the law, did Republicans begin to claim that the law meant something entirely different than everybody understood.
As Roberts further notes, the crucial four-word phrase on which opponents base their entire argument, the extraneous four-word phrase that would supposedly bring the whole edifice crashing down, is buried in what the chief justice calls “the ultimate ancillary provision: a sub-sub-sub section of the Tax Code.”
Finally, Roberts notes that the four-word phrase in question, if interpreted as opponents demand, would “likely create the very ‘death spirals’ that Congress designed the Act to avoid.” “It would destabilize the individual insurance market in any state with a federal exchange,” leading to huge rate increases and reductions of 65 to 70 percent in the number of people covered. He concludes that no fair reading of the law could lead you to believe that Congress intended such a disastrous outcome:
“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.”
As a result of today’s ruling, we can now turn our attention back to Congress and the Republicans who control it. If they want to repeal and replace ObamaCare, as they have claimed for the past five years, they still have the power to at least put their alternative on President Obama’s desk. Yes, he would veto it. But the American people would then have a stark choice — ObamaCare, or the option put forth by the GOP — and the 2016 presidential election could become a referendum on those two alternatives.
But we all know that will not happen. It will not happen because the Republicans have no alternative. Even among themselves, within the House and Senate Republican caucuses, they cannot come to a consensus about the approach to take. Reaching such a consensus would require Republicans to compromise with Republicans, and even that they cannot do.