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Nearly a week has gone by since the Supreme Court’s unexpected decision
to enlist in the latest effort to destroy the Affordable Care Act, and
the shock remains unabated. “This is Bush v. Gore all over again,” one
friend said as we struggled to absorb the news last Friday afternoon.
“No,” I replied. “It’s worse.”
What
I meant was this: In the inconclusive aftermath of the 2000
presidential election, a growing sense of urgency, even crisis, gave
rise to a plausible argument that someone had better do something soon
to find out who would be the next president. True, a federal statute on
the books defined the “someone” as Congress, but the Bush forces got to
the Supreme Court first with a case that fell within the court’s
jurisdiction. The 5-to-4 decision to stop the Florida recount had the
effect of calling the election for the governor of Texas, George W.
Bush. I disagreed with the decision and considered the contorted way the
majority deployed the Constitution’s equal-protection guarantee to be
ludicrous. But in the years since, I’ve often felt like the last
progressive willing to defend the court for getting involved when it
did.
That’s
not the case here. There was no urgency. There was no crisis of
governance, not even a potential one. There is, rather, a politically manufactured argument
over how to interpret several sections of the Affordable Care Act that
admittedly fit awkwardly together in defining how the tax credits are
supposed to work for people who buy their health insurance on the
exchanges set up under the law.
Further, the case the court agreed to decide, King v. Burwell,
doesn’t fit the normal criterion for Supreme Court review. There is no
conflict among the federal appellate circuits. (Remember that just a
month ago, the absence of a circuit conflict led the justices to decline
to hear seven same-sex marriage
cases?) In the King case, a three-judge panel of the United States
Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously
upheld the government’s position that the tax subsidy is available to
those who buy insurance on the federally run exchanges that are now in
operation in 36 states.
A
panel of the United States Court of Appeals for the District of
Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’
argument that the language of the statute limits the tax subsidies to
those who buy insurance through the state exchanges, which only 14
states have chosen to set up. The full appeals court quickly vacated the
panel’s judgment and agreed to rehear the case. The new argument was
set for next month, and the briefs were already filed. The absence of a
circuit conflict and an imminent rehearing by the country’s most
important court of appeals would, in the past, have led the Supreme
Court to refrain from getting involved.
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing
the Affordable Care Act in its cradle, before it fully took effect.
When the court agreed to hear the first case, there actually was a
conflict in the circuits on the constitutionality of the individual
insurance mandate. So the Supreme Court’s grant of review was not only
unexceptional but necessary: a neutral act. The popular belief then that
the court’s intervention indicated hostility to the law was, at the
least, premature.
Not
so this time. There is simply no way to describe what the court did
last Friday as a neutral act. Now that the justices have blown their own
cover, I notice the hint of a slightly defensive tone creeping into the
commentary of some of those who have been cheering the prospect of
rendering the Affordable Care Act unworkable: that as a statutory case,
without major constitutional implications, any problems for ordinary
Americans that result from a ruling against the government can be fixed
by Congress (where House Republicans have voted 50 times to repeal the
entire law) or by the states themselves (36 of which failed to set up
their own exchanges, thus requiring the federal government to step in as
provided by the law).
Sure.
It
bears repeating that what’s at stake is whether the Affordable Care Act
can continue on its successful trajectory or whether it will collapse
into the “death spiral” it was structured to avoid. The reason goes back
to the individual mandate, the constitutionality of which the Supreme
Court upheld by a 5-to-4 vote two years ago. The policy reason for
requiring everyone to carry health insurance is to guarantee a big pool
of basically healthy people and to prevent what might otherwise be the
smart strategic behavior of buying insurance only when illness strikes
(behavior the law’s “guarantee issue” provision would otherwise invite,
since no one can be turned down on the basis of a pre-existing
condition.)
The law is also designed to make insurance affordable, with no one being required to spend more than 8 percent of his or her income of health insurance.
Federal
income tax subsidies available on the exchanges are supposed to bring
premium costs below that threshold; without the credits, many people
would be exempt from the individual mandate and the law would fail.
Congress
assumed that most states would set up exchanges; most states, led by
red-state governors, did not. Section 1321 of the law provides that when
a state defaults, the secretary of health and human services shall
“establish and operate such Exchange within the State.” Clear enough:
“such Exchange” implies, without explicitly saying so, that the federal
exchange stands in for the missing state’s exchange and assumes its
functions. But another section, 1401, explicitly makes the tax subsidies
available to taxpayers and their dependents who buy insurance “through
an Exchange established by the State.” Those challenging the law say
this means “only the state” and that the I.R.S. is not authorized to
give subsidies to the more than five million people enrolled through
federally run exchanges.
These
two provisions, part of a 900-page statute that was cobbled together
without going through the usual House-Senate conference committee in
which it might have been cleaned up, are the source of the confusion.
The answer to the problem, as the Fourth Circuit panel found unanimously
in the King case, is obvious. It’s a basic principle of administrative
law that when a federal statute is ambiguous, courts defer to the
agency’s interpretation — here, the I.R.S. regulation that makes the tax
credits available without regard to whether the exchange is state or
federal.
The 1984 decision that established this deference principle, Chevron U.S.A. v. Natural Resources Defense Council, Inc.,
is so central to the modern understanding of how the government works
that it is among the most often invoked Supreme Court decisions of all
time, cited in some 13,000 judicial decisions so far, a number that
grows at the rate of about 1,000 a year. The tax provisions of the
Affordable Care Act fall so naturally onto the “Chevron deference”
landscape that it would take an agenda-driven act of judicial will to
keep them out and to conclude that Congress enacted a law that contained
the seeds of its own destruction.
Chief Justice John G. Roberts Jr.
knows something about taxes. He saved the Affordable Care Act from his
usual allies two years ago by his opinion deeming the individual
mandate’s penalty provision to fall within Congress’s tax power. This
case puts him back under what I can only assume is an unwelcome
spotlight.
It takes the votes of four of the nine justices to accept a case. Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.
— the four who two years ago would have invalidated not only the
individual mandate but the entire law — voted to hear King v. Burwell.
(Michael A. Carvin, the plaintiffs’ lawyer, predicted as much last
month, declaring in an uninhibited interview
that the pending rehearing before an appeals court that has recently
attained a majority of Democratic-appointed judges would be no deterrent
to the justices who wanted to take the case. “I don’t know that four
justices, who are needed here, are going to give much of a damn about
what a bunch of Obama appointees on the D.C. Circuit think,” he told a
reporter from Talking Points Memo.)
An
intriguing question is whether there was a fifth vote as well, from the
chief justice. I have no idea, although I can’t imagine why he would
think that taking this case was either in the court’s interest or in his
own; just two months ago, at a public appearance at the University of
Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.
Here’s
another possible scenario, just a theory: that the four, still steaming
over what the right wing regards as the chief justice’s betrayal two
years ago, voted to hear King v. Burwell not only for its destructive
potential, but precisely to put the heat on John Roberts. I hadn’t
really focused on this idea until I read a piece
that John Yoo posted on National Review Online the day after the court
granted the case. Professor Yoo, formerly of the Justice Department’s
Office of Legal Counsel and now at the University of California at
Berkeley, wrote that the new case gave the chief justice “the chance to
atone for his error in upholding Obamacare” and that “it will be the
mission of his chief justiceship to repair the damage.” John Yoo — yes,
the Bush administration lawyer whose “torture memos” attempted to
justify that administration’s “enhanced interrogation” policies — is a
smart man, a former law clerk to Justice Thomas who remains well
connected at the court. His choice of the words "atone” and “mission,”
with their religious resonance addressed to the devoutly Catholic chief
justice, is no accident.
So
this case is rich in almost every possible dimension. Its arrival on
the Supreme Court’s docket is also profoundly depressing. In decades of
court-watching, I have struggled — sometimes it has seemed against all
odds — to maintain the belief that the Supreme Court really is a court
and not just a collection of politicians in robes. This past week, I’ve
found myself struggling against the impulse to say two words: I
surrender.
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