Roberts sides with Supreme Court’s liberal wing to uphold Obamacare subsidies

The Supreme Court, June 2015. (AP Photo / Jacquelyn Martin)

The Supreme Court, June 2015. (AP Photo / Jacquelyn Martin)

The Supreme Court has upheld Obamacare subsidies for people buying health insurance on the federal exchange. The vote was 6-3, with Chief Justice Roberts writing an opinion joined by the four justices on the court’s “liberal wing” and Justice Anthony Kennedy.

The dispute in King v. Burwell was based on a single phrase: “established by the state.” Here’s where it comes from:

Obamacare provides for subsidies to help people buy health insurance if they earn between 100 percent and 400 percent of the poverty rate. These subsidies are, as the majority opinion in the case confirms, the only reason insurance can be described as affordable under the Affordable Care Act: The law’s “individual mandate” to buy insurance only applies if doing so would consume no more than 8 percent of one’s income. Not receiving the subsidies, Roberts wrote in regard to the citizens who sued the government in this case, “would make the cost of buying insurance more than 8 percent of their income.” Thus, health insurance is not being made affordable because the cost is going down, but rather because subsidies are going up.

The law also says these subsidies are made available to people buying insurance on “an exchange established by the state.” But 34 states, including Georgia, chose not to create their own exchange, leaving its establishment up to the secretary of Health and Human Services under a different provision of the law. At issue was whether subsidies should also be available on the federal exchange, even though the plain language of the law indicated otherwise.

The main opinion goes to great lengths to explain why Congress meant something other than what it said. But the operative one seems to be this, from the opinion (case-law and statutory references omitted for brevity’s sake):

“The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’ And Congress passed much of the Act using a complicated budgetary procedure known as ‘reconciliation,’ which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

In other words: Congress was in a hurry, you see, (because Ted Kennedy died and voters in Massachusetts of all places elected a Republican to replace him in the Senate, expressly to slow down a process in which Democrats were ramming through a law without regard to objections from the minority party; the justices left that part out) so while we recognize the statute lacks “the type of care and deliberation” expected of landmark laws, we will just go ahead and assume Congress had thought about what it wanted to do with due “care and deliberation.”

That is a helluva peg on which to hang the fate of a complicated and far-reaching law.

That is also the judgment of Justice Antonin Scalia, who notes the weakness of the “inartful drafting” excuse along with many others in a sharply worded dissent. He notes the court also changed the plain meaning of the law in its 2012 ruling uphold Obamacare (in which the majority held that the law’s “penalty” for not buying insurance, which was intentionally not described as a “tax” for political purposes, was in fact a tax after all for the purposes of constitutionality). His summary of how the court has decided the two cases: “(N)ormal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Indeed, one of the things that struck me while reading Roberts’ opinion was his utter failure to contemplate, much less address, the possibility that Congress intended to limit subsidies to exchanges operated by states. Instead, Roberts recounts the history of previous, state-based plans to boost insurance (including the one in Massachusetts — thanks again, Mitt Romney!). He describes the familiar refrain of Obamacare supporters that reforming health insurance necessarily means a few things: Insurers must cover all comers without charging more for all but a few characteristics; in turn, individuals must be required to purchase insurance so that they don’t simply buy insurance once they become sick; and the government must subsidize these purchases for low-income folks so that they can afford to comply with the mandate.

Because Congress was trying to accomplish all these things, Roberts argues, there’s no way Congress intended for subsidies only to be available to certain people, i.e. those buying insurance on state exchanges.

But another possibility was acknowledged by one of the health policy experts who helped create Obamacare, MIT professor Jonathan Gruber: that subsidies were limited to state exchanges as a way of encouraging states to do the hard work of setting up an exchange.

Scalia, in his dissent, points out Roberts’ failure to consider the possibility (references again omitted):

“(T)he Affordable Care Act displays a congressional preference for state participation in the establishment of exchanges: Each state gets the first opportunity to set up its exchange; states that take up the opportunity receive federal funding for ‘activities … related to establishing’ an exchange; and the secretary may establish an exchange in a state only as a fallback. But setting up and running an exchange involve significant burdens — meeting strict deadlines, implementing requirements related to the offering of insurance plans, setting up outreach programs, and ensuring that the exchange is self-sustaining by 2015. A state would have much less reason to take on these burdens if its citizens could receive tax credits no matter who establishes its exchange. … So even if making credits available on all exchanges advances the goal of improving healthcare markets, it frustrates the goal of encouraging state involvement in the implementation of the act. This is what justifies going out of our way to read ‘established by the state’ to mean ‘established by the state or not established by the state’?” (emphasis original)

It is for reasons like this — and two others from the 2012 ruling, including the one I already mentioned — that Scalia suggests the ACA should be known popularly as “SCOTUScare.” I can think of no more damning way to describe the way the court has assigned itself enough power to save such a flawed law.

(Note: Updates to the original post are incorporated throughout.)

Reader Comments 0

126 comments
lvg
lvg

" A well regulated militia being necessary for the security of a free state" is gibberish and has no legal or constitutional  signiificance according to Antonin Scalia and is verbal flatulence.by the framers of the Constitution but  "exchanges of the states" can only be interpreted literally and not within the context of the ACA.  Time to end Scalia's judicial activism as an appointed party hack.

Hedley_Lammar
Hedley_Lammar

Scalia responded like a school child. SCOTUScare. That is the sort of thing I would expect here not in a SC opinion.


Roberts opinion in contrast was cool and logical. His opinion was narrow which is the exact opposite of judicial activism.


Everyone has always been clear what Obamacare meant and it rightly wasn't defined by 4 words buried deep in a subsection of a subsection. To overturn Obamacare would have been legislating from the bench. 


Roberts did his job and correctly interpreted the law. 

MaryElizabethSings
MaryElizabethSings

Supreme Court Justice Roberts is an American patriot.  He has redeemed the U. S. Court and taken politics out of the Supreme Court.  All Americans should thank him.  Our nation's ideals remain intact.


If the American people ever lost faith with, and trust in, their Supreme Court, chaos could break out in this country.  Roberts has taken the visionary road in behalf of America. The Supreme Court, before Roberts, was in danger of losing the trust of the American people. He has restored faith in the decisions of the Supreme Court.  Huge.


Thank you Washington, Jefferson, Adams, Hamilton, Franklin, Lincoln - and Roberts.

Visual_Cortex
Visual_Cortex

Pretty disappointed to hear you taking Scalia's side on this. If the PPACA is really so very wretched, though, it should be simple enough to win the White House and relegislate it in 2017. I think the Republic will stand til then, somehow.

Hedley_Lammar
Hedley_Lammar

@Visual_Cortex Simply winning the WH wont be enough. They will need to get a 60-40 split in the Senate. In truth republicans now realize ACA isn't the trainwreck they told everyone it would be.


But they put so many eggs in that basket its hard for them to move on. 

LilBarryBailout
LilBarryBailout

@Visual_Cortex

Even if half of voters are on the dole in one way or another?  Kinda makes it tough to elect folks who believe in personal responsibility, following the rules, and working for a living.

MHSmith
MHSmith

About your risk corridors lil liar andy 

.

.

Are you dumb enough to think that will kill the ACA, after yesterday's ruling. Huh, the way the Republicans are going they might, unbelievable as it sounds, lose 2016 when everything says they should win. 


Who needs to educate themselve is YOU. 


Somebody gave you a hint earlier yesterday when they asked you if you ever got tried of losing? 


Oh, and here's one you don't have to answer, since you're never wise enough to tire of lying: How much subsidy do you take from the taxpayers for healthcare coverage, lil lousy liar? 


Even people with money that own businesses are smart enough to buy government subsidized insurance for themselves with as much taxpayer money as they can write off on their taxes. 


Now people who could never afford quality marketplace insurance or worked in jobs that offered no healthcare insurance  can take at least some of the same advantage. Because of that you call them moochers for doing the same things Kyle, YOU, Dusty, Rafe and any one with two live brain cells do on the taxpayer dime?


Well lil phony these so-called moochers have a name for you too and you wear it well.  

MHSmith
MHSmith

 Ohio Gov. John Kasich’s Obamacare Roadshow hits Iowa


Embrace Obamacare, or throw the mentally ill in prison. According to Ohio Gov. John Kasich, those are a state’s only options.


The Republican presidential hopeful said as much Wednesday during his unofficial campaign’s first visit to Iowa....


http://watchdog.org/225917/obamacare-roadshow-iowa/



And the accompanying...


BACKGROUND: Seen the light? Ohio Gov. Kasich says Bible supports Obamacare.


Preach on brother John, tell it!



JoelEdge
JoelEdge

They've made health insurance so cheap you need a government subsidy to afford it. A related story of health care stocks surging should tell you all you need to know about the direction of medical costs.

Ralph-25
Ralph-25

Life, Liberty, and the Pursuit of Happiness.  Americans honor those words written by our forefathers.  Sorry Conservatives. I guess you thought they were only meant for you.

Mandingo
Mandingo

This is turning out to be a bad month for the GOP. The Confederate flag is being removed from state capital grounds. Obamacare upheld. The right for gays to legally marry one another soon to be validated by the court. If they were to take The Dukes of Hazzard re-runs  off the air many " conservatives" may be driven to commit suicide.

Beau1500
Beau1500

@LilBarryBailout That article was written by the American Action Forum, an unabashedly right wing rag sheet. subsidized once again by the Koch brothers.

MHSmith
MHSmith

@LilBarryBailout


I never asked for, or was any part of the risk corridors brought up by me in the on going discussion below. 


Your opening line> 


The able-bodied folks who need tax payers to take care of their everyday expenses get to keep their handouts.  


My reply >


@LilBarryBailout


Have you ever heard of disabled?


I'm sure that too does not exist in your whacked out philosophical perversion of conservatism.  


Go check out your stock in BIG PRAMA. It probably went up thanks Obamacare along all the other medical industry. BTW they were all on the upside


Your reply >


@MHSmith @LilBarryBailout

87% of Obamacare enrollees get subsidies.  Are they all disabled?


To which I said...>


@LilBarryBailout @MHSmith Could 87% of Obamacare enrollees afford buy healthcare without Obamacare?


Oh, again got any proof  that this questionable “87%” can afford healthcare without the ACA subsidy?


Can YOU or would you buy healthcare without your government subsidy that covers whatever percentage of what health care or healthcare insurance you have?




If you don't own up to getting a healthcare subsidy then I know your are misspeaking like a F boy Bookman rug all over Kyle's place if you say you are not getting a healthcare subsidy in some form. Lil liar and thief 


Even Kyle was man enough to admit to his taking the “tax write off healthcare subsidy” he gets. 


.

I still await your proof of that 87% claim are able to afford healthcare without the ACA subsidy and you still can produce it and you won't tell the truth about your government subsidy. 


MarkVV
MarkVV

The way the debate has developed here it makes clear what is the bone that is stuck in the throats of many conservatives here. It is not that the Supreme Court affirmed the intent of the law, passed by the legislature of this country. No, it is that it means that the people of this country as a society will help those, who previously could not afford health insurance and cannot pay the medical bills, to have healthcare.

“the welfare state that the parasite party has created?”

“I missed the part of the constitution which guarantees food, housing, phones, cable, health care etc. for everyone.”

“Now the poor get free housing , free food and free health care ALL AT THE TAX PAYERS EXPENSE.”

It is not just the idiocy of those statements that is so telling.At least some of the people who express such opinions will, at other times, profess their religious feelings, their love for people. But here they show their true color.

LilBarryBailout
LilBarryBailout

@MarkVV

You were free to help those  who previously couldn't afford health insurance, prior to Obamacare.  If you and like-minded leftists weren't so greedy, you'd have done that on a private, charitable basis long ago.

DawgDadII
DawgDadII

@MarkVV  I understand the point you are TRYING to make, but you clearly do not understand the conservative point of view, definitely not in this case.


I have been unemployed and without insurance and responsible for family members with significant pre-existing conditions (all at the same time). It WAS possible to get health insurance under these conditions, and I and my family are LIVING WITNESSES to that. A lot of people, several I know personally, would not even lift a finger to make the effort necessary to be the responsible head of a family under these conditions, let alone get coverage for themselves. One such person won't even bother to sign up for subsidized coverage under Obamacare.


My position is this: Health care needed to be driven by policy THE OTHER DIRECTION, more based on free market economics with consumer focused-controlled purchase and care decisions. This law is clearly intended as an incremental step to drive us to Federal single payer, which will be disastrous. If they wanted a welfare program to provide coverage for the poor, similar to Medicaire Part D they should have done it ABOVE BOARD in the proper manner, legislatively. You probably ASSUME conservatives would not have supported that; I point to Medicare Part D as evidence I and we very well might have supported it, packaged with other free market reforms for health care and insurance. As is, you got a law written for the benefit of mega-corporations, Wall Street, large insurers, and leftist politicians, with a completely false label and buildup, with a corrupted and incompetent rollout, with untold horrors yet to befall us in execution, all at the expense of the working man.


I will never express my support for this legislative and moral abomination.

DawgDadII
DawgDadII

@MarkVV  I should clarify the "without insurance" comment.Facing expiring COBRA coverage and with no employer-provided coverage, I was in need of purchasing health insurance coverage and ensuring there would be no lapse in coverage for myself and my family members, while effectively "self-employed" (not a W-2 employee). Even with pre-existing conditions in my family it WAS possible to purchase coverage. It took a lot of effort, but the organizational methods and insurance products were out there in the market. If you were scrambling to earn income in a self-employed mode you incorporated your self-employment business and the company bought employer-provided health insurance for the employees. There had to be at least two employees for the insurance to be offered, which was myself and my spouse. In this case, I signed up for an individual coverage and my spouse took family coverage. All of this for the cost of a business license and the cost of health insurance, which yes, was expensive, much more so than COBRA. But it was possible, very doable, and widely available to anyone willing to understand and execute the basic fundamentals of incorporation. It worked, and it kept myself and my family off the welfare rolls, health care wise.

RafeHollister
RafeHollister

@MarkVV No what sticks in my craw Mark has nothing to do with an America that has come to be so dependent on government, it is the erosion of the separation of powers.  It is the duty of the Congress to repair, patch, rewrite, change, or repeal legislation, not the Constitutional duty of the Supreme Court.  Roberts has rewritten the legislation three times, today, in 2012 when he said a penalty was a tax even though the Obama regime never used that argument, and when he fixed medicaid expansion in the states to make it Constitutional.

MarkVV
MarkVV

@DawgDadII @MarkVV 

What you are doing is a classical example of improperly generalizing an individual experience, suggesting that all those millions of previously uninsured people were in a similar situation as you were and were not insured due to some fault of theirs. It is a step up from just calling them parasites, as others have done, but it still shows ignorance of the scope of the problem.

RafeHollister
RafeHollister

Redefining words to make them the opposite of what the traditional meaning was, sounds much like Pravda, instead of a federal court.  So, now the Supremes think they need to add paternalism to their duties.  Their decision indicates that they think they must look out for an incompetent President and a Congress too careless to write what they intended.  I think the American people have had it just about up to here, with a paternalist Executive Branch and Congress, now we can add the Supremes.  Hopefully folks will turn out and try to elect folks who believe in the Constitution and the separation of powers, so that we can stem this American decline.  Enough with this top down autocratic government., that is not responsive to the people.

MarkVV
MarkVV

@RafeHollister  Those people demonstrating today in front of the Supreme Court in favor of Obamacare have given you the answer to your demand for a government responsive to people.

332-206
332-206

@RafeHollister

"...this top down autocratic government., that is not responsive to the people."


Maybe it is responsive to the people.

Leaving you in the minority...

DawgDadII
DawgDadII

@MarkVV @RafeHollister  Yesterday my spouse participated in a demonstration that actually made the nightly TV newscast in Atlanta. More than 30 people protested against one local businessman. Guess what? The businessman wins. Everything he did was in accordance with the law. We have laws for a reason, because mob rule has proven historically to be very dangerous. Also, who's to say those 30 people, or the rabble that you reference, are really reflective of public opinion as a whole? I don't think the people of this country are ready to turn over rule to leftist mobs, although it is clear many people think they would prefer that.

Caius
Caius

From the majority opinion: 

"In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done."

This is pure CJ Roberts.He is usually reluctant to override the legislators elected by the people.I recall in one week in 2012 the Court had 3 of 4 cases dealing with legislation and, whether in the majority or not, he voted to uphold the legislature in all 3 cases.

I realize there are some on here who want the Court to overrule the people's representatives if the case is on a law they do not like.  Having 5 appointed people make law is better than having 535 elected representatives make law, or so it appears.  In this case 6 appointed judges allowed the will of a majority of the 535 elected representatives to prevail.

The Court has not always done so. Tomorrow or Monday it will probably override many state legislatures in the Obergfell v Hodges decision.  Stay tuned!



wildcat12
wildcat12

Do you truly think that the founding father's would have envisioned the welfare state that the parasite party has created?


I missed the part of the constitution which guarantees food, housing, phones, cable, health care etc. for everyone.


Sloth, poor decisions and lack of personal responsibility or accountability are destroying this country. Unfortunately, our parasites are killing the host. They do not seem to understand that eventually bankruptcy will lead to zero give away and wealth transference programs. We will be Greece, Spain, Italy and France times ten. The limousine leaders of the parasite party will live in the mansions behind gated estates while we fight over the crumbs.


We build a fence around the White House to protect the President but will not build a wall/fence along our border to protect regular citizens from the millions of criminals that pour over the border every year. I assume that our lives and welfare are not that important to the parasite party who just want votes. How would the President feel about an illegal killing his child< Would his stance on illegal immigration change if one of his daughters was unfortunately raped and butchered by an illegal? One death at the hands of an illegal is too many and could be stopped. I do not understand how these people sleep at night.

DMayr
DMayr

@wildcat12 Wow. Do conservatives ever stop and actually listen to themselves, or other conservatives, and think? The endless, seemingly mindless vitriol can't be serving any purpose other than self validation. And, if you need THIS to validate yourself and your opinions, what can this possibly say about your ideology? 


Seriously: stop for a moment, take a deep breath, and think about what you're saying, and what it says about you.

Atlanta Craker
Atlanta Craker

A tax credit, is just another way to allow some to get free money from the IRS and other to pay more through audit and over enforcement. Thieves!

lvg
lvg

@Atlanta Craker Truly surprised Kyle would post a message that  refers to "ahole in White House who hates white people"  but right wing media appears to have no boundaries in discrediting and defaming our current president

Kyle_Wingfield
Kyle_Wingfield moderator

@lvg @Atlanta Craker I missed that as I was skimming comments and approving them. You're right, that runs afoul of the rules on this blog. Thanks for pointing it out.

Jefferson1776
Jefferson1776

The headline should be "intelligent" wing.  Greed kills.

MHSmith
MHSmith

As soon as all these folks who are getting government subsidies for healthcare in whatever form give up THEIR government healthcare mooching subsidies, I'll give up mine.


WOW Kyle,WOW Dusty WOW Lil' andy


JUST WOW!


LOL

Dusty2
Dusty2

@MHSmith 

MHSmith


Call up your subsidized healthcare mooching unit.  I think you need help. 

LilBarryBailout
LilBarryBailout

@MHSmith

Yeah, your opinions on this pretty much screamed "I demand that tax payers pay my bills for me".  Thanks for the confirmation.

TheRealJDW
TheRealJDW

LOL...Kyle those are some seriously sour grapes.  Bottom line, we have, in spite of the concerted effort of the Repug Nation, finally managed to make progress in addressing the issue of healthcare coverage in this country.  Now think about all the wasted effort here and imagine what might have been achieved with all those resources squandered in the pursuit of "Just Say No"

LilBarryBailout
LilBarryBailout

@TheRealJDW

Too bad in their rush to "make progress" the liberal fascists couldn't be bothered to write a law that doesn't have to constantly be unilaterally rewritten and purposely misinterpreted in order to survive.

It makes a mockery of the rule of law.

But as long as the moochers are getting their tax payer handouts, it's all good, eh?

lvg
lvg

@LilBarryBailout @TheRealJDW I assume you will never draw social security ot take tac credits for your social security income if you do draw it. And you will not mooch for home interest payments or property taxes. 

straker
straker

7576DAWG 


Wow!!!


How can I get in on that "free housing, free food and free healthcare"?


I must have been out fishing when information on this was made available to the public. 

Claver
Claver

@straker When you find out, let all those homeless people hanging out over by 5 Points know.  They all must have been out fishing, too.

7576DAWG
7576DAWG

Now the poor get free housing , free food and free health care ALL AT THE TAX PAYERS EXPENSE.  I don't have any problem taking care of really sick or old people but there are millions of young people who have the philosophy of why should I work when those who want to work are going to be made to provide for me . You set up a mindset for millions to waste away their lives and never try to see what their potential would have been. 

The United States is moving more and more toward the European way of Government. We might as well accept it .Tax everybody at 75% and let the Government decide how to divide the money. They know what is best for the American people. And by the way the Constitution needs to be repealed and rewritten to change all of the" for the People " reference to" for the Government". The Congress and the Supreme Court should be proud.

cc423
cc423

Free healthcare? They are paying for it and they are paying their premiums to PRIVATE insurance companies.

Dusty2
Dusty2

@cc423   People did that before cc.  so why change it.  It was  changed  because the government is sometimes paying part  of it and silly people thought it would be l FREE.  Subsidies are just a pat on the back to make people get insurance. 

RonMexico
RonMexico

Get over yourself, Kyle. It's amazing that you can write garbage like this with a straight face and keep playing the same old conservative victimhood game. 

The only way that the Supreme Court could've ruled in favor of the plaintiffs is if they had completely ignored the stated intent of the ACA drafters (all of whom said it was ridiculous to imply that they put a "self-destruct" clause into the law intentionally). The fact of the matter is that the plaintiffs seized upon four words out of hundreds of thousands, in the hope that they could find a "gotcha" that would allow the GOP to yank health coverage away from Americans who need it most. Now that SCOTUS has showed a little bit of common sense, you, Limbaugh, Coulter, Hannity and God knows how many other unhinged Koch sycophants are going to scream from the rooftops that it's all part of the left's plan to destroy 'Murika.

So, Kyle, tell us: what's your alternative, if the ACA is so horrible? Or are you just like all your GOP heroes who rail endlessly against it, but have refused for FIVE YEARS to propose a plan that doesn't revolve around "free market healthcare economics," AKA "if you're poor, you don't get healthcare." 

6-3 is a blowout victory for sensibility and a death knell for the GOP's insane never-ending drive to undo Obamacare. But it's over now, finally. You lost. Move on and focus your energy on finding on other ways to kick the poor and needy when they're down, because this door has been slammed shut. 

lvg
lvg

Little Barry is right we need more unfunded mandates like Reagancare that shifts costs of the uninsured to the insured and forces people to be really ill before they get hospital care in the ER and only after long waits . Maybe having mandatory crematoriums next to the ER for those who do not survive the wait would cut  down on the burial costs too. I am sure the hospitals can figure out a way for the insured to cover the costs of operating them.

LilBarryBailout
LilBarryBailout

@lvg

What we need are more people who don't mind paying their own bills.  There is a large percentage of folks in the country who think they're not supposed to pay their own way.  Suggest that they buy their own health care or pay back their student loans and they think you're some kind of crazy person

lvg
lvg

@LilBarryBailout @lvg Wow I never thought of a program where people are forced to buy their own insurance. Didn't Romney and the Heritage folks propose that and Obama turned it down?????

332-206
332-206

@LilBarryBailout @lvg

Barry, what offends you the most about Obamacare?

-It's free.

-Everyone is forced to buy health insurance.


Can you limit yourself to just one?.