John Roberts Saved Obamacare Again


Scott Lemieux in The Guardian (Photograph: Donald Traill/Invision):

As Roberts’s opinion carefully explains, however, the plaintiffs’ claim was plainly wrong when the provision is read in the context of the statute as a whole. Roberts observed that, “State Exchanges and Federal Exchanges are equivalent – they must meet the same requirements, perform the same functions, and serve the same purposes.” If the court had accepted the theory of the law’s opponents, Roberts wrote, no one utilizing a federal exchange would qualify for a subsidy, “But the Act clearly contemplates that there will be [subsidy-] qualified individuals on every Exchange” even if the law doesn’t spell it out to its opponents’ satisfaction.

Even the court’s dissenters in this case once understood that Congress wouldn’t establish federal exchanges if they wanted them to fail – when it was politically convenient for them to understand it. Thursday’s majority opinion, in observing that it is “implausible that Congress meant the Act” to establish federal exchanges that wouldn’t work, cited the joint dissent written by Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in NFIB v Sebelius – the first case the court heart on the ACA –which assumed that the subsidies would be universally available. Kennedy was at least consistent in his assertion that subsidies would be available to all; the other three dissenters in Sebelius changed their interpretations in this case because their objective is apparently not to construe the statute fairly, but to inflict the maximum amount of damage to it.

Justice Scalia’s histrionic, protesting-too-much dissent provides plenty of evidence that his legal reasoning gave way to his political positions. Attempting to answer the question of why Congress would go to the trouble of designing a federal backstop that was designed to fail, Scalia asserted that, without the subsidies, the “the individual mandate [would continue] to encourage people to maintain coverage, lest they be ‘taxed.’” This is simply nonsense: in many cases, because Americans with low incomes aren’t mandated to carry insurance if it represents a financial hardship, without the subsidies, many people wouldn’t carry insurance nor be taxed for not doing so.

More here.