Commentary

Scalia’s Obamacare Argument Is Stronger than Roberts’

This Obamacare case was supposed to be different. King v. Burwell was not a constitutional challenge that threatened or promised to roll back federal power. It merely asked the U.S. Supreme Court to interpret four simple words, “established by the state,” that recur multiple times in myriad variations to distinguish among the different kinds of exchanges through which people can buy insurance under the Affordable Care Act: state, federal, territorial, private, other.

Pretty esoteric and sui generis — as many exercises in interpreting complex statutes are — although at stake were subsidies flowing to millions of people and mandates/penalties constricting millions of others.

And yet the result was the same: Chief Justice John Roberts, who had been the apple of George W. Bush’s eye, twisted key words away to vindicate the administration of Barack Obama.

Scalia renamed the law at issue “SCOTUScare,” but really it deserves the moniker RobertsCare.

Take this sentence from one of the opinions: “If we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” You’d think that I pulled that line from Justice Antonin Scalia’s dissenting opinion. After all, it takes the statutory text on its face, with the interpreted result that Congress gave states the incentive to create exchanges by making their citizens eligible for tax credits if they do.

But you’d be wrong. It comes from the majority opinion, in which the chief justice admits, as he did three years ago in the individual mandate case of the National Federation of Independent Business v. Sebelius, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorted himself to ignore that “natural meaning” and rewrite Congress’s “inartful” scheme, this time such that “exchange established by the state” means exchange established by anyone. Scalia rightly called this novel interpretation “absurd.”

Of course, Roberts explained his twistification by finding it “implausible that Congress meant the Act to operate in this manner,” to deny tax credits for health insurance as part of legislation intended to expanded coverage. Yet it’s hardly implausible to think that a statute that still says that states “shall” set up exchanges — the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to enforce federal law — would effectively give states an offer nobody thought they’d refuse.

It was supposed to be a win-win: States would run health care exchanges (yay federalism!) and everyone who needed subsidies to afford Obamacare’s more expensive policies would get them (yay universal health care!).

But a funny thing happened on the way to utopia, and only 16 states (plus the District of Columbia) took that bargain, perhaps having been burned too many times already by the regulations that accompany any pots of “free” federal money. And so we were stuck with way too many people in the federal exchange, covering the states that didn’t opt in. Obamacare the reality didn’t accomplish Obamacare the dream. And the law as written said that subsidies for health insurance — in the form of tax credits — were to be given only to people in state exchanges, not the federal one.

That may not be the absolutely correct reading of the Affordable Care Act story. But it’s nothing if not plausible.

And it should’ve been the end of the legal analysis: The law’s clear text produces a plausible result, so courts should enforce that “natural meaning.” As Scalia put it, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

“Under all the usual rules of interpretation,” he continued, explaining the obvious, “the Government should lose this case.” Alas, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

The best that can be said about the ruling is that it disclaimed any reliance on the so-called Chevron doctrine, which tells courts almost always to defer to executive agency interpretations of statutes. (A more recent case expanded Chevron even to questions of the agencies’ own authority.)

That pernicious bit of jurisprudence has enabled the administrative state to explode and, had Roberts relied on it, would have allowed the executive branch to legislate without any judicially enforceable limit. Instead, again like three years ago, we have a horrendous bit of wordplay that subverts the rule of law to preserve the operation of an unpopular program that has done untold damage to the economy — but is really a ticket good for the ACA train only.

No, instead of allowing agencies to rewrite laws, the chief justice on Thursday gave himself that power. Scalia renamed the law at issue “SCOTUScare,” but really it deserves the moniker RobertsCare.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, a libertarian think tank, and editor-in-chief of the Cato Supreme Court Review.