GovCare weathers another legal challenge

Three years ago, how time flies, the US Supreme Court upheld the constitutionality of the Affordable Care Act in NFIB v. Sebelius. The outcome was determined by the opinion of Chief Justice John Roberts, who agreed with four other justices that the individual mandate exceeded the authority of Congress under the commerce clause but upheld the levy to encourage compliance with the mandate as a “tax.” There was a consolation prize for conservatives: states could not be coerced into expanding their Medicaid coverage by threats to deny federal funding for existing Medicaid programs. Assessing the GovCare decision, 7/9/12.

The subsequent case of
King v. Burwell involved a more prosaic issue. For qualifying healthcare insurance (HCI) policies purchased on state-established exchanges, the ACA provided subsidies (tax credits) for people falling below specified income levels. The availability of tax credits was not authorized, however, in the case of HCI policies purchased on federal exchanges (only 16 states had established a state exchange). And unavailability of such tax credits in any given state would – under the statute – void the individual and employer mandates for that state.

Was the distinction between state and federal exchanges designed to encourage states to establish state exchanges, or did it represent a careless drafting error? The IRS had said tax credits would be available in the case of HCI policies purchased on federal (as well as state) exchanges, and the legal challenge was to their determination. What to expect when the Supreme Court rules on GovCare again,

The Court’s opinion in
King v. Burwell, 6/25/15 (download PDF), began by equating the tax credits with reform.

The Patient Protection and Affordable Care Act adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market *** bars insurers from taking a person’s health into account when deciding whether to sell health insurance or how much to charge *** generally requires each person to maintain insurance coverage or make a payment to the Internal Revenue Service *** gives tax credits to certain people to make insurance more affordable.

Although the 21-page opinion penned by Chief Justice Roberts (again) was far more erudite, here’s the basic thrust: Under a strict reading of the “Exchange established by the State” language, millions of Americans receiving tax credits in federal exchange would have been out of luck – Congress could scarcely have intended such a result – the language should therefore be read as harmonizing with the remedial purposes of the statute.

Not everyone agreed, and there are valid concerns about this type of judicial reasoning. But as a practical matter, Congress would have hastily restored the tax credits in federal exchange states if they had been struck down. Discussion follows.

A. The dissent – Justice Antonin Scalia scathingly critiqued the majority opinion, beginning as follows:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.

Scalia went on to complain of:

interpretive jiggery-pokery, defense of the indefensible, rewriting the law under the pretense of interpreting it, somersaults of statutory interpretation, [favoring] some laws over others, and [being] prepared to do whatever it takes to uphold and assist [the Court’s] favorites.

In short, the Court had gone to such lengths to uphold the Affordable Care Act that it might be apt to start referring to the law as “SCOTUScare.”

This rebuttal seems logical and well supported, although perhaps a tad overdone (also 21 pages!).

B. Conservative response – Numerous observers have lambasted the King v. Burwell decision and/or the same sex marriage ruling that followed it, complaining of judicial activism and proposing various cures therefor. Here’s a sampling.

Supreme Court validates Obama’s power grab, Michael Cannon, Cato Institute, 6/25/15: Today the Supreme Court allowed itself to be intimidated. Afraid that ObamaCare as written would throw the sickest patients out of their health plans a second time, the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations: If you are going to violate the law, make sure you go big.

Jim DeMint, 6/26/15 e-mail soliciting signatures for an open letter to Congress: Even the Supreme Court, which like the President and the Congress is obliged to uphold the Constitution, has in the span of two days issued rulings on marriage and Obamacare that undermine the rule of law and ignore the Constitution. Reporters and pundits are already saying these decisions are the final word. You and I know better. And we at The Heritage Foundation won't sit back and allow this contempt for the Constitution to continue.

•GOP candidates [Scott Walker, Marco Rubio, Lindsey Graham, Jeb Bush, Rick Perry, Bobby Jindal, Mike Huckabee], Washington Examiner, 6/26/15. Republican presidential candidates say stocking the Supreme Court with conservatives and considering a constitutional amendment to give states the right to regulate marriage are two ways the GOP can fight back against Friday's ruling that legalized gay marriage around the country. Both ideas, coincidently, would require voters to put one of these candidates in the White House in 2017. *** [Meanwhile,] Democrats broadly supported the ruling.

Constitutional remedies to a lawless Supreme Court, Senator Ted Cruz, National Review, 6/26/15: The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed [say periodic judicial retention elections] that will restore health to the sick man in our constitutional system.

Supreme Court v. Rule of law, David Harsanyl,, 6/26/15: I know, I know, the Affordable Care Act is moral and decent and that's all that matters. Liberals demand we govern through empathy-based jurisprudence rather than anything resembling the antiquated [tenets] of founding principles. If you care about the latter more than you do the former, the fact that Supreme Court justices are aping the consequentialist arguments of the left and then working backward to make their legal justifications is probably the worst sign for checks and balances yet.

C. What might have been – If King v. Burwell had been decided the other way, millions of Americans in federal exchange states could have lost their tax credits and been faced with the choice of paying full cost or dropping their HCI policies. Howls would have ensued that heartless Republicans were attempting to kill healthcare reform, and the GOP would have been hard pressed to win the argument.

Many observers suggested that Republicans should develop a contingency plan for GovCare reform, which could be proposed after the government lost the case. Various plans surfaced, none of which achieved widespread acceptance. We doubted that significant gains would be achieved under the envisioned circumstances. What to expect when the Supreme Court rules on GovCare again,
3/16/15 (parts 6 & 7).

[In conclusion], the Supreme Court’s decision in King is not likely to have a major effect on how the GovCare program develops from this point – whether the Court strikes down the IRS-created tax credits or not. It is not our intent to question the effort put into filing King and the companion cases, however, because the IRS recognition of tax credits not authorized by the statute is part of a disturbing pattern of executive overreach. Actions fitting this description should be challenged vigorously, whenever they crop up, lest this country’s constitutional system perish by default.

As the government prevailed, the point is now moot, most likely to the secret relief of some Republican politicians. While free to continue to keep harping about the real or imagined deficiencies of GovCare, they don’t actually have to do anything about fixing it right now.

For their part, Democrats are taking a victory lap about the Supreme Court win, which supposedly shows that GovCare is working well and here to stay. Transcript, president’s weekly address,

. . . this is not some abstract political debate. For all the misinformation campaigns, and doomsday predictions; for all the talk of death panels and job destruction; for all the repeal attempts – this law is helping tens of millions of Americans. This isn’t just about Obamacare. This is healthcare in America.

Some of the president’s talking points don’t ring true, e.g., a claim that “the law has helped hold the price of healthcare to its slowest growth in 50 years,” but ultimately the American people will have to decide. No doubt the debate about this and other policy issues will continue in coming months, which suits us fine.

D. The judicial process – It’s a mistake, in our opinion, to expect much help from the courts in resolving big policy questions. That’s true for healthcare, environmental regulations, education, and many other issues. Judges lack the institutional resources, political support, or expertise to play a constructive role. If the executive branch is to be stopped from dominating the government, Congress – elected by “We the People” – will have to do the heavy lifting.

On the other hand, claims that judges just call the balls and strikes while others make the law have little credibility. When disputes are litigated, judges inevitably wind up making decisions that favor some claimants/claims at the expense of others.

Did the Supreme Court’s decision in
King v. Burwell represent a politically neutral exercise in interpreting the language of the ACA? Of course not, for all of Justice Roberts’ assertions, as Justice Scalia ably demonstrated in his dissent.

Ironically, Roberts took a very different tack in his gay marriage dissent, asserting that the majority was indeed making law by declaring gay marriage to be a constitutional right. Obergefell v. Hodges,
6/26/15 (download PDF).

•Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.

•Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Has the gay marriage issue truly been put to rest, as one might hope? No, further litigation is readily predictable, e.g., disputes based on gay marriage rights vs. freedom of religion and speech rights guaranteed by the First and Fourteenth Amendments. The wisest judges in creation would not be able to resolve these conflicting claims without leaving some people feeling dissatisfied.

Similarly, turning to a different issue, the murder of nine black people in a Charleston church by a deranged racist has triggered an extraordinary backlash against the Confederate flag or any other symbols of the Confederacy. Taking down the flag on the statehouse grounds in Columbia, SC seemed clearly appropriate (nay overdue), prohibiting confederate flags on state-issued license plates probably makes sense, but some of the other proposals are dubious.

Why should Wal-Mart and Sears stop selling Confederate flag merchandise, for example, while merchandise bearing communist country flags are not similarly restricted? Should statutes of southern leaders be torn down, Robert E. Lee Highway renamed, “Gone With the Wind” banned because it supposedly glorifies the Civil War, etc.? And by the way, some people may deem the American flag to be provocative too. The book burning begins, Mike Adams,,

Lest readers conclude that SAFE is adding a host of social issues to its agenda, we hasten to disavow any such intent. These are just examples showing the tendency of the courts to fixate on issues of interest to the media, government class, and intellectual elite in our society, while other matters – notably economic liberty and property issues – are given short shrift.

How can a proper balance be restored? There are no easy answers, but as a starting point we would suggest that people who are concerned about economic issues let their concerns be known. That, of course, is what SAFE has been doing for nearly two decades – and we plan to keep doing it.


Let us belay the notion that these justices are “learned” and study the law and make decisions according to law. They are just as politically motivated as elected officials. – SAFE director

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