Just as he did three years ago in the original case affirming the constitutionality of President Obama’s signature health care legislation, Chief Justice John Roberts found a way to avoid having the U.S. Supreme Court bear the responsibility for stopping the Affordable Care Act. By declaring that the language in the law saying that insurance subsidies would be made available in exchanges “established by the states” was ambiguous rather than a seemingly straightforward rule, the chief justice allowed the subsidies to continue coming directly from the federal government in the states where no exchanges were set up. Today’s decision in King v. Burwell is a huge victory for President Obama’s legacy and assures ObamaCare’s survival unless Republicans are able to repeal it by taking the presidency and retaining control of Congress in 2016, and even then it is not certain that they’d be able to repeal it without coming up with a viable alternative, something they are unlikely to be able to do. But it is also a tactical political win for the GOP since the overturning of the subsidies would have put Congress in a position of having to come up with a fix that would have allowed millions of Americans to keep their insurance.
As it was in 2012, one has to try and read between the lines to understand the tortured reasoning supporting Roberts’ majority opinion. The assertion that the plain English of “established by the states” is hard to credit. But, like his insistence that ObamaCare mandates were a tax (a position that neither the government nor those suing to have it overturned held) rather than a clearly unconstitutional infringement of the Constitution, Roberts has managed to come up with a rationale that allows the court to let ObamaCare survive in spite of the strong legal reasons why it should be halted. Yet, in doing so, rather than keeping the court out of politics, the chief justice has actually done more to undermine its credibility than any controversy stemming from its overturning of the statute would have done. In his stinging and brilliant dissent, Justice Antonin Scalia rightly says that the law ought now to be called “SCOTUScare” rather than ObamaCare since it is only alive due to the judicial somersaults that Roberts turned to keep it going. The idea that the court upholds the law without respect to political fears was always a tenuous hope, but now it is completely dead.
As for the future of the law, it must be conceded that the chances are good that it is now a permanent part of the country’s legal landscape. Should Republicans sweep both Congress and the presidency next year, it is likely they would take up repeal in January 2017. But just as the possibility of the subsidies being taken away set off a divisive battle inside the GOP over what to do about the plight of the millions who would then lose their insurance, repeal is no longer merely a matter of starting over from scratch. Any attempt to overturn a law that would have already been in operation for years will be a perilous undertaking fraught with political danger for Republicans. Their presidential candidates will all pledge to throw it out in the coming campaign, but that will be easier said than done. The odds are that John Roberts has ensured that this legal monstrosity will live forever.
In the short term ObamaCare survival is a boost for Republicans since a win for the plaintiffs would have meant that Congress would have been forced to wrestle with the difficult problem of finding a patch that would have let the subsidies stay in place. That would have been an impossible task as conservatives would never have endorsed anything that let ObamaCare linger on in any form, and the president wouldn’t have signed even the most reasonable of compromises. Their inevitable failure to deal with the problem would have given Democrats a powerful cudgel with which they could have abused the GOP next year. The millions who lost their insurance as a result of the overturning of the subsidies would have become poster children for Republican heartlessness.
But while they may be breathing a sigh of relief over dodging this bullet, conservatives should be mourning what Roberts has done in his two ObamaCare decisions.
By twisting itself into a pretzel in order to let the law stand, the court has allowed the Democrats to massively expand the power and the reach of government in ways that we are only just beginning to understand. The ObamaCare mandates create a dynamic that does more than offer cheap insurance to more people than would have otherwise been covered. It also allows the federal government to embark on a path in which it will be making far-reaching decisions about the future of American health care. It has already created rules that infringe on religious liberty and create distortions in the marketplace that will lead to massive increases in premiums while also losing jobs. While many, especially among the poor, are net winners, it has also created a large number of net losers who will never be compensated for the president’s broken promises about keeping their insurance and doctors if they liked them.
President Obama’s legacy as the man who pushed a health care law through Congress that few understood is now secure. Some Americans will benefit from this, but many others will be paying dearly for this unwieldy law. Most of all, future generations will recognize the court’s decisions as a crucial moment when our liberties were diminished. That is something for which all those involved in passing and preserving this disaster should be held accountable by history, if not the ballot box.