Panels from two separate federal appeals courts issued opposing rulings yesterday about whether the Affordable Care Act authorizes premium tax credits for insurance plans purchased over federal exchanges. The D.C. Circuit panel's ruling (which will be submitted for review to the full court, where the government's argument stands a much better chance) decreed that subsidies may only be offered to plans on exchanges "established by the State" -- as in, state-run exchanges. The Fourth Circuit panel argued that it's clear the law allows the government to offer subsidies, either through state-run or federally facilitated exchanges, for people to purchase health insurance.
The dueling appeals court rulings establish the federal subsidies question as prime Supreme Court bait, and commentators are already beginning to make their predictions on the outcome of that decision.
Vox's Ezra Klein persuasively explains why the D.C. Circuit panel's reading of the ACA is ludicrous. He then argues, less persuasively, that there's no way the Supreme Court's conservative majority will back up that ludicrous reading. "For Halbig to unwind Obamacare the Supreme Court would ultimately have to rule in the plaintiff's favor," Klein writes. "And they're not going to do that. By the time SCOTUS even could rule on Halbig the law will have been in place for years. The Court simply isn't going to rip insurance from tens of millions of people due to an uncharitable interpretation of congressional grammar." The Court would be inflicting not just damage on those millions of people, but also on its own credibility:
For five unelected, Republican-appointed judges to cause that much disruption and pain would put the Court at the center of national politics in 2015 and beyond. It would be a disaster for the institution. Imagine when the first articles come out recounting the story of someone who lost their insurance due to the SCOTUS ruling and then died because they couldn't afford their diabetes or cancer treatment. Imagine when every single Democrat who had any hand at all in authoring the law says the Court is completely wrong about what the law meant. Imagine when every single Democrat runs against the Court.
Chief Justice John Roberts realized that in 2012 when he ruled the individual mandate constitutional. All evidence suggests he didn't want to rule the mandate constitutional. But he thought it would harm the Court to do otherwise. Deciding for the plaintiffs in Halbig would do far more damage to the law than striking down the mandate and it would do so when the law is actually providing insurance to people. It's not going to happen.
We've seen this line of thinking before from staunch Obamacare defenders.
When the law passed in 2010, and Republican attorneys general instantly decided to sue over the constitutionality of the individual mandate, we were told that there was no way any court would entertain such a silly idea. And yet several deep-Republican benches ruled the mandate unconstitutional, sending it to the Supreme Court, where it -- the individual mandate, at least -- barely survived.
Chief Justice John Roberts' opinion, however, did allow states to opt out of the Medicaid expansion. We were told after that surely there was no way a state, even a fully red state, could turn down such a sweet deal from the federal government; the hospitals would never let GOP governors get away with it, anyway. Two years later, some 20-odd states have no plans to expand Medicaid, depriving millions of poor people of medical coverage.
And a few years ago, when conservative lawyers were floating the rationale behind this federal subsidies case, legal experts once again thought of the argument as a hilarious, desperate joke that would go nowhere. Now it's just a matter of time, in all likelihood, before the case arrives on John Roberts' lap.
Klein is right, though, to consider the Supreme Court's ruling through the lens of politics instead of a nonexistent neutral approach to the law. Right now, presumably, there are four conservative justices who'd love nothing more than to blow up Obamacare and four liberal justices who think this challenge is a dumb joke. And then there is John Roberts, who'd also love nothing more than to blow up Obamacare, but also knows, as Klein says, that it would shred what remains of the Court's reputation. So sure, he is likely to follow the course he took in the Obamacare challenge two years ago.
But the course he took two years ago was not to save Obamacare. It was to uphold one major part of it (the individual mandate) while gutting another major part of it (the Medicaid expansion). This was the clever way Roberts acted out his conservative ideology while simultaneously getting credit in the press for heroically putting aside conservative ideology in order to save the Republic.
This is how John Roberts rolls, so expect a similar ploy this time around. While he will be wary of ruling in the plaintiffs' favor head-on, there's no way he's going to get another pass at Obamacare and let it through without chewing something off. What will that be? Well, he's got some time to mull it over.