Antonin Scalia (Reuters/Kevin Lamarque)

Scalia's new Obamacare test: Will the activist justice ignore reason and facts?

Conservatives' desperate case against the ACA suffers another setback, but that might not matter to Antonin Scalia


Simon Maloy
October 31, 2014 9:00PM (UTC)

It’s a safe assumption that if the Republicans take the Senate on Tuesday, one of their first orders of business will be to take another stab at repealing the Affordable Care Act, even if it’s just for show. Mitch McConnell and Rand Paul and John Barasso have all tried to temper expectations by pointing out that Barack Obama is still president and isn’t likely to sign off on the dismantling of one of his biggest policy achievements, but appearances must be kept up to pacify restive conservatives.

But for all the talk of legislative repeal, the Affordable Care Act’s fate may depend more on what happens in the Supreme Court today. As the New Republic’s Jonathan Cohn points out, the justices are meeting today to decide whether they’ll take up King v. Burwell, a case that closely mimics the contours of the more celebrated anti-Obamacare case Halbig v. Burwell. In both cases, the plaintiffs seize on ambiguous wording in one section of the law to argue that the Affordable Care Act was written in such a way that it prevents federal subsidies for purchasing health insurance from being offered through exchanges set up by the federal government. A three-judge panel of the Fourth Circuit Court ruled against the plaintiffs in King and upheld the ACA subsidies this July.

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The argument put forward in these cases makes no sense. Exchanges without federal subsidies would be useless things. They’d be worse than useless, in fact, as they would ensure that nobody in those states would sign up or pay for their coverage, thus ensuring the law’s failure in states controlled by Obamacare’s Republican opponents. The position of the plaintiffs is essentially that the people who drafted the Affordable Care Act purposefully included a big red “SELF-DESTRUCT” button and gave anti-Obamacare GOP governors the option to press it.

All this has been pointed out many, many times by the ACA’s defenders, as has the fact that none of the reporting or analysis from the Affordable Care Act’s drafting period entertained the notion that federal subsidies would be withheld from federally run exchanges. That argument got a big boost yesterday when the chairs of the House and Senate committees that actually drafted the ACA wrote an op-ed for the Washington Post explaining that they always intended for federal subsidies to flow through the exchanges, regardless of who actually set up the exchange. To back up their case, they pointed to a March 2010 fact sheet produced by the relevant House committees “reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government.” The fact sheet says the ACA would provide “premium tax credits to limit the amount individuals and families up to 400% poverty spend on health insurance premiums.” It says nothing about those credits being available only through state-run exchanges.

It’s never been particularly easy to form a coherent, rational argument for why the plaintiffs in King and Halbig are right, and this latest bit of evidence makes it all but impossible. Remember, the thrust of the lawsuits is that the ACA's drafters intended for the subsidies to be available only through exchanges set up by the states. Here we have the law’s drafters saying “no, that’s not what we intended,” and providing proof of what their actual intention was from the time the law passed.

But conservative opposition to Obamacare isn’t based on rational arguments; it’s based on the ideological imperative of getting rid of the Obamacare “cancer” by any means necessary. And if that means rewriting the ACA’s legislative history and playing dumb about what really happened, so be it. And if it means stripping over four million people of the subsidies that enable them to pay for their health insurance, well: omelets, eggs, etc.

Their best hope for success is that the conservative justices on the Supreme Court are as beholden to ideology and as contemptuous of the truth as they are. The attorney representing the plaintiff in Halbig is actively rooting for the court’s conservative bloc to behave like mindless partisans and dismiss rulings from lower court judges for no other reason than the fact that they were appointed by Obama.

The scary thing about all this is that it’s not an entirely unreasonable hope. “It takes only four votes to grant a hearing,” Cohn writes, “and, as we learned in the individual mandate cases, there are at least four justices very hostile to the law.” We’ll know soon enough whether their faith in the Supreme Court’s activist conservative wing is justified.

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Simon Maloy

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