6-3 = 6.4 Million

At stake yesterday was the future ability of 6.4 million Americans to receive subsidies for purchasing health insurance, even though they live in states that did not set up their own health care exchanges and, because of four ambiguous words, might have been denied those subsidies. That sound you heard a little past 10 a.m. yesterday morning was the collective sigh of relief, not only among the 6.4 million, but also from health care providers, especially those who care for the poor such as Catholic health care providers. And, although they won’t admit it, plenty of Republican officials were relieved as well, as there was no clear back-up plan to provide subsidies to those 6.4 million people, many of them voters, if the Supreme Court had ruled the other way.

This case never should have come to the court. It was engineered by conservative legal scholars in the pay of conservative political interests, scouring the law for some line of attack. What they found were four words – “established by the State” – in one section of the law that were unclear and ambiguous. They argued the subsidies should only be available in states that set up their own exchanges, rather than states that chose to have the federal government exchange serve as their state exchange. It was a flimsy argument.

It is not the job of the Supreme Court, or any court, to save a legislature from its own mistakes. But, the court held to a long-standing belief about statutory interpretation, Chief Justice John Roberts declined to invoke the Chevron standard by which the court defers to a government agency in determining the meaning of a statute. Instead, he declared, in the opinion of the Court:

But often­times the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 290 (2010) (internal quotation marks omitted).  

It is worth noting that Justice Antonin Scalia, who dissented in this case, joined the majority in the Brown & Williamson case from which the first quote above is taken. Indeed, Chief Justice Roberts quoted from Scalia’s own opinions at other points in the decision. It should be obvious to all that Scalia, so far from being a principled “textualist” is perfectly content to find ambiguity when it suits him and to deny its existence when it does not so suit him.

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Any other reading of the statute than the one followed by the Obama administration and endorsed by the Supreme Court yesterday makes no sense. As the Chief Justice pointed out, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” This is not controversial as a matter of jurisprudence. It is only controversial if you think any conservative has an obligation to tear down the ACA by any means necessary.

Scalia hurled some funny charges at the majority, accusing it of committing “interpretative jiggery-pokery,” the first time that phrase has found its way into an opinion of the august Supreme Court. He said the majority’s reasoning amounted to “pure applesauce.” He suggested that because the Court has saved the ACA twice now, it should be called “SCOTUScare.” Scalia would be simply funny if he did not have one of nine votes on the nation’s highest court. John Roberts did the world a favor yesterday by showing just how out of touch with reality, how unconservative, Scalia’s jurisprudence really is. The Chief Justice also made life really hard for the next nominee from a Republican president to the court: That poor person will have to show past membership in the Young Americans for Freedom or the Daughters of the American Revolution or something to pass muster with the GOP’s base. Scalia has always scared me. He is an ideologue. And his ideology, which sometimes garners four other votes, points to the need, I believe, that the next vacancy on the court be filled with someone with experience from one of the other branches of government, someone who has actually made laws or executed them. Facts are more stubborn than ideologies, and the Court would benefit from having someone who has had to work with facts on the bench.

Conservatives have been venting about Roberts all day. Politico has the story. They are not really angry at Roberts, they are angry at the thought that people do not view the world through the same narrow lens they apply. They are like Roper in “A Man for All Seasons,” willing to tear down the forest in pursuit of the Devil, not thinking where they will hide when the Devil turns round. As a matter of attitude, of mental temperament, there is nothing conservative about today’s conservative zealots. Chief Justice Roberts is not going to allow the reputation of the Supreme Court to be trashed by them as they pursue political ends by legal means.

The practical consequences of the ruling are obvious. In the 34 states that did not set up a state exchange, and whose citizens would have lost their subsidies if the ruling had gone the other way, 6.4 million people would have had much more trouble keeping their insurance and many of them would have lost it. For Catholic health care, which takes care of people whether they can pay or not, the burden would have been enormous. Sr. Carol Keehan, DC, CEO of the Catholic Health Association issued a statement worth quoting in full:

We applaud today’s Supreme Court ruling that will allow millions of people to keep their health coverage. By concluding that insurance subsidies are available to eligible people regardless of whether their state is a federally-run or state-run marketplace, the Court has granted a victory for the Affordable Care Act and the health of our nation.


The ACA has faced numerous challenges, from false rumors to judicial disputes. Now that the Supreme Court has once again ruled in favor of the law and its coverage provisions, it is time to move on. Our collective time and energy should now be spent building on the progress we have already made.


So far more than 16 million people — many of them vulnerable or uninsured for a lifetime — have obtained reliable, affordable, meaningful health coverage. CHA will continue working with our members and partners in government to continually improve the ACA so it can serve as a lifeline for generations to come.

It is my sincerest hope that the USCCB, like Chief Justice Roberts, like Sr. Carol, will think twice before trying to wreck the ACA should their challenges to the contraception mandate fail. At a time when the nation could scarcely be more divided, we need the leaders of our Church, like the leaders of our courts, to exercise prudence and balance.

 

 


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