When Obamacare last faced a legal challenge in 2012, I said that the Supreme Court would bend over backward to avoid declaring a landmark act of Congress unconstitutional. And the justices, or rather Chief Justice John Roberts, did do legal contortions to save it. Once again, the high court is faced with a lawsuit that could spell doom for the Affordable Care Act. How will it go this time?
In theory, the court is supposed to be immune to pressure and be above politics. In reality, justices read newspapers, watch TV and can’t ignore our polarized politics.
It’s hard to argue that politics — and a desire to protect the high court’s reputation and standing — didn’t figure in the 2012 ruling. A decision striking down the law as unconstitutional would have been vilified by President Barack Obama, Democrats and liberal mainstream media heavy hitters. Roberts decided that penalties to force people to sign up for insurance could be construed as a tax, and thus the law was constitutional under the government’s taxing authority. That was contrary to the vigorous protests of Obama and Democrats when the law was being written that penalties were not taxes.
The issue now similarly comes down to the plain language in the law, this time over subsidies to low-income Americans buying Obamacare insurance. The health-care act says such subsidies go to those who buy insurance off an exchange “established by the state.” The problem for the law’s backers is that only 13 states and the District of Columbia established exchanges.
Most states opted out because the law has been unpopular thanks to the way it was muscled through Congress with only Democratic votes and the falsehoods that got it passed — if you like your insurance, you can keep your insurance, if you like your doctor, you can keep your doctor.
How could the justices save Obamacare this time? An obvious way is to declare that the language in question would defeat the purpose of the law, to extend medical coverage to the uninsured. Denying aid would make insurance unaffordable to the more than 6 million Americans who get the subsidies.
But Justice Antonin Scalia pointed out the unambiguous language, saying the law “means what it says.” What’s more, there’s evidence that the language was written to lure states into establishing exchanges. Liberals couldn’t envision that states might not accept free (to them) money from Washington.
All this arguing over language — a penalty becomes a tax and a federal exchange should be no different from a state exchange — might make you wonder: Is the purpose of the high court to determine if a disputed law is legal or to find a way to make a challenged law legal?
Clearly, liberals and Democrats believe the latter to be the case regarding Obamacare.
The issue before the court this time is not one of constitutionality, but a question of how to read the statute. Yet, Justice Anthony Kennedy raised a constitutional question: did the offer of subsidies by Congress amount to unconstitutional pressure on the states to sign on to the law? Even defenders of Obamacare found that notion novel, perhaps out of fear that it might endanger other federal programs.
Roberts wondered whether the law was so ambiguous that the court should defer to the administration’s reading. The law’s backers worry that such a ruling would allow a different administration to come to a different reading of the act’s requirements.
Kennedy was in the dissent in 2012. Does his line of questioning indicate he’s looking for a way to become the fifth vote this time to save Obamacare? Does Roberts’ question suggest he’s again looking for a way out?
Your guess is as good as mine.