June 26, 2015 / 9:20 PM / 4 years ago

COLUMN-Justice Scalia is the Supreme Court's real loser in Obamacare ruling

(William Yeomans served as Senator Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee and as a Justice Department official. He is a fellow in law and government at American University College of Law. The opinions expressed here are his own.)

By William Yeomans

June 26 (Reuters) - Chief Justice John Roberts’ majority opinion upholding subsidies on the Affordable Care Act’s federal exchange is a big gift to Republicans. Though he was ruling against the expressed desire of every Republican presidential candidate - that the subsidies should be eliminated even if that meant the nation’s healthcare system would enter a death spiral - the chief justice greatly simplified the lives of Republican politicians.

In the process, he made a powerful argument for deference to the legislature and the critical need to consider the goals of Congress and real-world consequences when interpreting statutes. By mustering five votes in support of his position, Roberts made a bitter loser of Justice Antonin Scalia and his rigid textualist approach to statutory interpretation.

In the weeks leading up to the decision, many Republicans had begun to realize that they did not really want the Supreme Court to deliver what they had asked. They scrambled to find a politically palatable solution to the loss of subsidies for millions that would avoid the collapse of the healthcare system without demonstrating politically toxic support for Obamacare.

The court’s decision put an end to that mad scramble and allowed Republican politicians to return to their unbridled, unthinking demands for repeal of the law. Republicans in Congress can continue to make those demands without fear they will be satisfied - though they control both houses of Congress and could theoretically use a parliamentary maneuver (the reconciliation process) that might allow repeal with a bare majority.

President Barack Obama, of course, will veto any repeal of the law and Congress would never muster the two-thirds vote required to override a veto.

The safety blanket that the court’s decision extended to Republicans will in fact outlast Obama’s term - even if he’s replaced by a Republican president. Here’s why: A lower court had ruled that the Affordable Care Act’s wording was ambiguous and, therefore, under longstanding precedent, courts should defer to the administrative agency charged with implementing the law. That meant the Internal Revenue Service - which had interpreted the law to allow subsidies for individuals buying health insurance through both state and federal insurance exchanges.

Had the Supreme Court just adopted the lower court’s reasoning, the next administration could have unilaterally changed the interpretation of the law. But under Roberts’s ruling, a future Republican president will no longer have that option - because giving such deference to an administrative agency was inappropriate.

He wrote that Congress surely would not have intended to commit a decision of this magnitude to the IRS, which lacks expertise in both healthcare law and policy. Instead the court gave itself responsibility for resolving any ambiguity. So, rest easy possible Republican presidents - an assertive court has made the decision for you.

Beyond its political implications, the decision was heartening for its constructive messages about cooperative governing and the interpretation of statutes. The chief justice explicitly set out to interpret the language of the healthcare act in a way that would make the law work. He assumed that Congress meant to write a statute that would improve health insurance markets - not destroy them.

Roberts emphasized “in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.” That meant that the court had to read all of the language in the context of the overall statute and the goals Congress sought to achieve. It requires a pragmatic consideration of the effects of its ruling.

As the chief justice wrote, “the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

Too often, the Roberts Court has positioned itself as the adversary of the political branches, refusing to afford deference to legislative goals or to consider consequences when striking down, for example, campaign finance laws and the core of the Voting Rights Act. How refreshing to have a majority of the court pursuing cooperative governance by reading a statue to effectuate congressional goals.

With this ruling, the six justices who signed the majority decision delivered an emphatic rejection of Scalia’s rigid textualism, which elevates the literal words of a statute - no matter how inconsistent with the plain goals of Congress - above all else.

The debate in King v. Burwell centered on a single phrase, which authorized subsidies for qualified applicants who signed up for insurance through an “Exchange established by the State.”

Scalia barked that those words were clear and certainly did not mean an exchange established by the federal government. Yet, the law states that if the state does not establish an exchange, the federal government shall establish “such Exchange.” It is certainly a permissible - and indeed a preferable meaning of the phrase for anyone interested in actually bringing about what Congress proposed - to read “such Exchange” as meaning the federal government shall establish the state exchange.

As Roberts explained, failure to read the language this way would render several provisions of the Affordable Care Act meaningless and lead to dire consequences directly contrary to the purpose of Congress.

That did not matter to Scalia. He was unwilling to move beyond the argument that the words “federal government” did not appear.

It is reasonable to suspect that Scalia’s distaste for the Affordable Care Act, which likely inclined him to bring it down rather than save it, made his textual argument easier for him to make here. This battle over the correct way to interpret statutes has been a defining characteristic of Scalia’s jurisprudence.

Thursday’s decision confirms that he has lost. (William Yeomans)

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