As we approach the fifth anniversary of the Affordable Care Act, the Supreme Court will be hearing the latest challenge to what even some Senate Republicans concede is now the law of the land. Polling data suggests a majority of Republican voters have had this same epiphany and would prefer the ACA be “fixed” rather than dismantled entirely. This is no wonder considering that millions of low- and middle-income Republicans finally obtained coverage under the law.
Many in the conservative elite, however, haven’t gotten the memo, and King v. Burwell is their desperate effort to derail the law in the midst of its implementation; never mind the some five to seven million Americans expected to lose their newly acquired health insurance if the court rules in their favor. At issue is whether or not the text of the law permits the federal government to distribute healthcare subsidies to individuals in states that refused to establish their own exchanges and thus defaulted to using the federal system. Some three-dozen states took this route, and if subsidies are cancelled healthy people will abandon their new plans in droves, leaving insurance companies on the hook for shrinking pools of the sickest patients. Premiums would skyrocket, and the whole system would collapse. This is the “death spiral” often invoked by opponents of the ACA, and it’s ironic that, since it hasn’t actually happened, they are now working tirelessly to engineer it.
In legalese, Burwell is a statutory rather than constitutional challenge, meaning it takes issue with the wording of a law rather than its constitutional pedigree. The text in question: that subsidies be distributed “through an Exchange established by the State.” The plaintiffs argue that by only explicitly mentioning state exchanges, Congress intended to exclude the federal exchange from subsidies.
In the context of a statutory challenge, they must demonstrate that the wording clearly prohibits subsidies on the federal exchange and, further, that this was Congress’s intent.
Otherwise, the Court would be compelled to invoke the “Chevron test,” a longstanding legal precedent that defers to the agency implementing a statute if the wording is ambiguous. In the case of the ACA, the IRS has already interpreted the law as intended to provide subsidies to all exchanges and has acted accordingly.
The challengers face an uphill battle. By all accounts, lawmakers and officials understood perfectly well what the intent of the subsidies was, even if they are now furiously backpedaling to line up behind this obscure challenge. Last month, Senator Orrin Hatch of Utah found himself in an awkward position after an op-ed he co-wrote in 2010 resurfaced which notes the establishment of state exchanges is “not a condition for receiving federal funds.” No one interpreted the subsidy language as exclusive to state exchanges until this omission was ferreted out from the 11.5 million-word text of the law well after its passage.
Lack of evidence aside, the plaintiffs’ logic is flawed. They argue that Congress used this language to strong-arm states into setting up exchanges by threatening to withhold federal funds. (Apparently Mr. Hatch never got the memo.)
But if Congress wanted to make a threat, why bury it so deeply in the law’s additions to the tax code? And since the federal exchange was plainly designed as a backup for recalcitrant states, why would Congress intentionally leave it hobbled?
Logic and evidence take a backseat in this last-ditch effort to ruin the ACA on a technicality and rob 70 percent of the law’s beneficiaries in the process. If the Roberts Court truly wishes to remain nonpartisan, it should roundly dismiss this ludicrous challenge.
As the justices have said many times, laws should not be interpreted piecemeal but rather in the context of their overall statutory intent, in this case to extend health insurance to those who can’t afford it. As conservative justice Antonin Scalia has said, “The words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” If he values sound legal interpretation over his partisan allegiances, Mr. Scalia would do well to follow his own maxim on this one.