The Supreme Court has rebuffed yet another attempt to destroy the Affordable Care Act.
In King v. Burwell, the challengers argued not that the Constitution prohibited the ACA, but that the law’s own text made one of its key reforms ineffective and indeed perverse. Applying a strong dose of common sense to reject this argument, Chief Justice John Roberts, writing for a six-justice majority, handed the people and the Congress that represents them a resounding victory.
The ACA is designed like a three-legged stool: First, it requires insurers to cover all Americans without regard to pre-existing conditions. Second, it requires individuals to buy health insurance if they can afford it — the much-maligned individual mandate that was the basis of the first Obamacare blockbuster case a few years ago. Third, it provides subsidies to lower-income people to make sure they can afford that insurance. Remove one leg, and the insurance exchanges, as Roberts noted in his majority opinion, descend into a “death spiral.”
The challengers argued that, even though all three of these pieces must work together to make the law function, Congress made the subsidies unavailable on so-called federal exchanges — those set up by the federal government when the states decline to set up their own. Why? In a little-noticed corner of the law, the text said that the subsidies could be made available only in exchanges “established by the state.” The challengers claimed this provision was actually quite deliberate: Congress was trying to pressure states to create their own exchanges by withholding subsidies if they didn’t.
The Supreme Court correctly applied standard interpretive methods in holding that, despite the apparent clarity of those four words, the law makes subsidies available on all exchanges, state and federal. Looking to the overall purpose, structure, and context of the Act, the court asked with incredulity why Congress would risk total implosion of the ACA just to encourage states to create their own exchanges especially when Congress itself provided the federal backstop. Congress wanted the states to help implement the law; it did not want to give states the power effectively to veto it.
The implications of this decision can be summed up in three words: The people won. The most obvious victory is in the decision’s implications for American health care. Had the dissenters prevailed, 8.2 million Americans would have been left uninsured, and many more would have been subject to large premium hikes. The ACA was a culmination of a decades-long effort to provide Americans with universal and affordable health care. And studies show that it is working in achieving those goals. By deciding for the challengers, the court would have gratuitously ripped a major hole in this social safety net.
The people also won because the Roberts Court has given them a solid basis for trusting that hard-won victories in Congress will remain intact when challenged in the court. When it decides constitutional cases — like the much-anticipated same-sex marriage cases — the court’s role is to serve as a check on the people, ensuring that legislative or popular majorities don’t act in violation of the Constitution. This is the sense in which the court has famously been described as “counter-majoritarian.”
But when interpreting statutes like the ACA, the court’s role is different. Its role is to serve as a faithful agent of Congress, working to interpret Congress’s laws in a manner consistent with the words on the page, the design of the statute, and the purpose of the legislature. Thursday’s ruling was resoundingly clear: a nit-picking textual literalism cannot trump clear context, structure, and purpose. The chief justice said it best: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
There’s a final reason the people won: This decision didn’t just prevent the destruction of Obamacare, it actually made it stronger. The government had asked the court to defer to the IRS’s interpretation of the ACA under a doctrine of administrative law that says that, when a statute is ambiguous, the agency gets to interpret it. The chief justice instead held that the IRS does not get to decide this monumentally important question: Instead, the ACA requires that the government provide subsidies in all exchanges. That means that no future IRS — and no future presidential administration — will get to decide otherwise. Asked to destroy the ACA, the court instead provided it one more layer of protection against its persistent opponents.
Still, however total this victory may be, it is worth reflecting on how vigorously the ACA’s opponents have tried to destroy it, and how close they have repeatedly come. When the ACA was passed, no member of Congress in either party argued that it meant what the dissent now claims that it does; nevertheless, at least four justices voted to hear King quickly, and three would have sided with the challengers. Indeed, Justice Antonin Scalia in his dissent went so far as to accuse the majority of having “no semblance of shame” in making arguments that amount to “interpretive jiggery-pokery.” Before we celebrate, we would do well to remember how close the law has come to judicial destruction.
Despite the vitriol of the dissenters, who have now twice tried to undo the ACA, Thursday’s decision is a reminder that the court rarely behaves like a bunch of politicians in robes. Chief Justice Roberts has made clear that he is no fan of the ACA, and Justice Anthony Kennedy vocally dissented from the 2012 decision upholding the law. Yet both voted in the majority in King, putting their judicial role before whatever their personal preferences might be. And this is how it should be when courts interpret the law. Scalia’s quip that we “should start calling this law SCOTUScare” is just sour grapes.
The decision is thus a resounding victory. And its beneficiaries are not just the obvious candidates — the Obama administration, and those who stood to lose their insurance. The winners include the court as an institution and the American people as a whole.
Laurence H. Tribe is a university professor and professor of constitutional law at Harvard Law School. He is coauthor of “Uncertain Justice: The Roberts Court and the Constitution,’’ just out in paperback.