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opinion | Laurence H. Tribe

Supreme Court’s chance to do the right thing on Obamacare

The US Supreme Court.AP/file 2014

The Supreme Court is about to hear a case — King v. Burwell — that again threatens to undermine the Affordable Care Act and strip health insurance from millions of Americans. The King challenge, which focuses on a handful of words in that famously long piece of legislation, is a clever one. But it’s too clever by half. Finding for the challengers would require taking a few words in the ACA out of their proper context, ignoring the law’s structure and purpose, and even jettisoning the conservative justices’ own pro-states’ rights views.

The challengers zero in on a sub-clause in the ACA describing how federal tax credits to help people buy health insurance are to be computed. It says such credits can go only to people buying insurance through “an exchange established by the state.” But the ACA specifically authorizes the federal government to establish substitute exchanges for states that ask for such help. The challengers claim the IRS wrongly interpreted the law’s reference to “state-established” exchanges to include the exchanges the feds set up on behalf of the 34 states that didn’t establish their own.

But the ACA was clearly designed to treat state-established and federally-established exchanges the same way. It even refers to an exchange set up by the federal government in the same sentence where it discusses an exchange established by a state, encompassing both within the phrase “such exchange.”


To be sure, there are legal arguments that could provide cover for going the other way: a 1,000-page statute is bound to contain some clumsy or inept phrasing, and the Supreme Court could give lawmakers a lesson in draftsmanship by punishing innocent citizens and the states they happen to live in. But it would be hard to reconcile such a harsh approach with how the court, led by Chief Justice John Roberts, has recently set about interpreting federal laws.

Just last week, in a case involving the prosecution of a sneaky fisherman under a federal law designed to catch financiers who destroy incriminating documents or other “tangible objects,” Roberts joined three Democratic appointees in an opinion by Justice Ruth Bader Ginsburg that refused to interpret the term “tangible object” to include fish, even though a literalist would surely conclude that fish, being objects one can touch, are literally covered by the law’s language — so much so that Justice Elena Kagan dissented.


And last year, Roberts wrote an opinion for the court forbidding the prosecution of a jealous spouse who tried to poison her husband’s lover, even though the federal law, read literally, seemed to encompass what the spouse did. But the court held that spreading on doorknobs the chemicals the spouse used to get back at her former friend was hardly the sort of conduct the Chemical Weapons Convention — one not concerned with domestic affairs — sought to control. Both with the betrayed spouse and with the evasive fisherman, Roberts didn’t let the literal meaning of isolated words, taken out of context, undermine the structure and purpose of the statute as a whole.

If Roberts continues to hum this melody and reads the contested language of the ACA in its proper context, some are bound to say he’s just protecting his and the court’s reputation from political fallout. Equally, if he votes the other way, he may be seen as compensating for his perceived betrayal of the justices to his right three years ago in the constitutional challenge to the ACA — or as offsetting the court’s likely decision this June to make marriage equality the law of the land.

Of course, no vote in such a politically salient case could avoid taking on some ideological coloration. But perhaps there is a way out of the political thicket. There is, in fact, a legally correct answer to the question this case poses. All nine of the justices have committed themselves, in numerous cases, to the view that snippets of statutes cannot be properly understood in isolation. They must be read in context, such that the statute as a whole makes sense. If the justices read the ACA with that in mind, only one conclusion is available: federal tax credits can be provided on both state-run and federally-run exchanges. In fact, when the ACA expressly calls the latter “federally-facilitated exchanges,” it makes plain that, although not literally “established by a state,” they are established by the federal government as a surrogate for the states asking it to do so.


Constitutional principles are at play as well. Roberts — like Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito – has repeatedly shown great respect for the prerogatives of the states. And he has shown little patience for federal laws that pressure or trick the states into accepting federal money with strings attached,especially when the prerequisites of fully informed voluntary choice are absent. Drawing on these principles, 22 states have persuasively argued in amicus briefs supporting the federal government that it would be unfair to tell them now, after they accepted the generous federal offer to set up exchanges for them, that they would thereby deprive millions of their needy citizens of essential federal assistance. I think the chief justice will agree.

It might be rash to predict that all nine justices would hesitate to subject states (as well as their citizens) to a cruel surprise when the case is decided. But I wouldn’t be shocked to see this case lopsidedly decided in favor of what I think is the legally sound result.


Some commentators suggest that Roberts and the court could win by not playing — that is, by refusing to decide the case at all, finding instead that the challengers lack standing to bring the suit because none of them would personally be injured by the IRS’s interpretation.

Such a move would be legally plausible but would rightly strike many as a cop-out. It would just postpone a final resolution until the savvy anti-ACA lawyers find somewhat more appropriate plaintiffs. In the meantime, millions of Americans would be unsure of their status.

The better way to avoid the charge of politicization — and to do justice to the people whose lives are involved, to the dozens of states that accepted the feds’ invitation to run their exchanges, and to the court’s integrity and reputation — is to reject this latest challenge.

Laurence H. Tribe is a university professor and professor of constitutional law at Harvard Law School. His latest book is “Uncertain Justice: The Roberts Court and the Constitution.’’


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