Pragmatic Conservatism At The Heart of Chief Justice’s Ruling To Uphold ACA Subsidies

To the dismay of political conservatives, Chief Justice John Roberts has now rescued President Obama’s Affordable Care Act (ACA) not once, but twice, from provocative legal challenges. Recall that in June 2012, the Court ruled that the penalties to be meted out under the law for failing to have health insurance were really just a tax by another name, and were constitutionally permissable. Three years later, the Chief and five colleagues now find that context trumps a literal reading of the words. Ironically, while this long running spectacle has proved once again (if we really needed further evidence) that it is fairly easy to find fault with the legislative “craftmanship” of massive omnibus laws produced by this or any other Congress, the larger lesson for me is that the Chief is deeply respectful of the political process and is at heart a philosophical conservative in the classic sense of the term. We are better for it.

The ruling today in King v. Burwell is based upon the judgment that the phrase “an exchange established by the state” does not literally mean that state exchanges providing health insurance subsidies to lower income Americans must be established by a state; the IRS was correct in ruling that the Federal government also may establish them for the benefit of qualifying residents of the various states. The narrow legal issue is a question of statutory interpretation, and the 6-3 majority found that the “context and structure” of the ACA allows the Federal government to step into the fray if a state declined to act on its own. As a policy matter, it is inarguably the case that those voting for the law intended for the exchanges to be established one way or another, and it is inarguably the case that a patchwork quilted insurance landscape where some states had the benefit of subsidies and some did not, would torpedo a key element of the law and frustrate the intent of the Congress that enacted it.

What if Justice Scalia (who has now coined the memorable, marvelous term SCOTUSCare) had held sway and the 36 Federal exchanges were deemed unlawful? What then is the path forward? House Ways & Means Chairman Paul Ryan suggested recently that the states should refrain from establishing exchanges, while Congress could pass a bill that would temporarily extend the subsidies, and in 2017 under a Republican President they would get around to passing the replacement portion of “repeal and replace.” In the interim, the financial and insurance markets would just have to be comfortable with ambiguity, if not utter chaos, that would reign in the face of it all — just trust us.

As a lifelong Republican I must point out that the Republicans have had their chances to put forth alternatives to the ACA, and they have failed to do so — at least not in any constructive, meaningful way. Mitt Romney had a chance to clarify exactly why his Massachusetts plan differed from the ACA and what he would do, if elected President, to modify and improve the ACA; I don’t recall any such speech or policy memorandum making the rounds. Let’s remember that there are millions of Americans who now have health insurance coverage who did not have it five years ago, including those with pre-existing health problems and children. Let’s remember that insurance markets work best when risk is spread across a broad continuum of the insured population. Let’s hope that the Accountable Care Organization concept and the other cost control measures will reduce the aggregate cost of healthcare in America over time; I am still skeptical about this. But I simply have no apetite to play a metaphorical Monopoly game and return to GO to begin the process again.

Our Constitution limits the bounds under which each branch of government may act, and if the Congress truly had exceeded its constitutional authority, or infringed upon the prerogative of the states in establishing the ACA framework, I have no doubt that the Court would have struck down all or key parts of the legislation. But after more than five years of reform and implementation, do we really want to start over with a new and slightly different model of health insurance reform just because the Congress was a wee imprecise in its use of a single phrase in a sea over 900 pages of statutory language?

We all know that this is a political game. The Democrats controlled the Congress in 2010, and they passed the ACA. The Republicans can’t repeal the law until at least 2017 because President Obama is not going to sign a bill that repeals his signature legislative achievement. So the lawyers got busy and scoured the bill for something that could be challenged . . . and after winding its way through the Federal judiciary up to the Supreme Court, the two key challenges have been found wanting and the ACA has survived. Some may say that the battle continues, but my sense is that the vast majority of Americans have moved on.

The Chief Justice’s legal opinions in these two cases mark him as one who is acutely aware of the context of legislation, and of the context in which the Court itself operates. Some of its decisions are inherently political because of the subject matter of the case before it. But the Roberts Court will be marked in history as one that left the policy making to the political branches of government as it largely hews to the prevailing judicial philosophy that the Chief spelled out in his Senate Judiciary questionnaire prior to nomination: judges “do not have a commission to solve society’s problems . . . It is judicial self-restraint . . . that confines judges to their proper constitutional responsibilities.”

Source: Forbes