Saturday, June 13, 2015

Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 2--Obamacare)

Just as closely-watched and controversial as the same-sex marriage case is this year's challenge to Obamacare.

Health Insurance Subsidies (King v. Burwell)
The question before the Supreme Court involves the federal tax subsidies to help lower-income workers purchase health insurance. Are those subsidies available only where insurance is purchased through a state-established marketplace? Or through a federally established marketplace as well?

The rub?
Virtually every Republican controlled state has refused to set up a health insurance marketplace. This resistance to Obamacare (the Affordable Care Act) has resulted in marketplaces being established in those states by the federal government. Several million workers have purchased their insurance in those Republican states--through federal marketplaces, with the help of the federal subsidies.

Now the law does authorize the federal government to establish such marketplaces--termed "exchanges"--in states that refuse or otherwise fail to do so. In fact, the law says that the federal government "shall' do just that.
But, the law only mentions the federal subsidies when referring to purchases “through an Exchange established by the State." [My emphasis.] There is no additional reference specifying subsidies for purchases through a federally established exchange.

To be sure, this case can be viewed from different perspectives.

As a purely legalistic matter, this case is simply an issue of statutory construction. I.e., what is the correct way to read or "interpret" the very terms of the Affordable Care Act regarding the availability of those subsidies? So just the language of the law.

As a matter of politics, partisanship, and policy, the case is about the impact the decision will have on national health insurance coverage and, more specifically, on the Obama administration's effort to achieve that. I.e., what are the implications for those several million lower-income workers and their families who had to obtain health insurance through a federal exchange, because their Republican controlled state governments refused to establish one? And what are the implications for the very purpose of the law itself? So not just the language of the statute, but the consequences of the Court's decision as well.

Let's put the cards on the table. There will almost certainly be nonsense spouted by both the conservative and liberal Justices. As for pure statutory construction, the conservatives will insist that the law must mean that subsidies are available only for state exchanges because the law only mentions subsidies in a section speaking about such exchanges. The liberals will insist that the law must mean the opposite because the federal exchanges are established on behalf of states and, therefore, are supposed to be treated as state exchanges themselves.
Of course, neither is really so clear. The law doesn't necessarily mean either.

As for politics, partisanship, and policy, there will be no less nonsense. The conservatives will insist that the consequences of a decision should not be considered by the Court, only the law itself--and that clearly requires the invalidation of subsidies for federal exchanges. The liberals will insist that consequences must be considered in rendering a judicial decision--and that clearly requires the Court to uphold subsidies for federal exchanges as well. Both the conservatives and the liberals will present their respective positions as pure law, as neutral (non-ideological) judicial decision-making, as devoid of partisanship and politics.
Of course, none of the foregoing is clear--except that politics, partisanship, and ideology will indeed play a major role in the Justices' voting.

So where does that get us?
It's a virtual certainty that the 4 liberal Justices--Ginsberg, Breyer, Sotomayor, and Kagan--will vote to uphold subsidies for federal exchanges. As a matter of politics, partisanship, ideology, policy, etc., they undoubtedly support the expansion of health insurance coverage under Obamacare. They understand that the subsidies are essential to that expansion, Indeed the subsidies may well be essential to the very survival of Obamacare.

It's also a virtual certainty that among the 5 conservative Justices--Roberts, Scalia, Kennedy, Thomas, and Alito--at least some of them are so opposed to Obamacare and hostile to what the Obama administration has sought to accomplish, that they will vote to invalidate subsidies for the federal exchanges. As for the millions who will lose the subsidies and then lose their health insurance, some of these Justices either do not care or they believe that such consequences are not their concern in deciding the case. As for possibly crippling Obamacare, they might well be delighted.

But the conservative Justices are not as cohesive a group as are the liberals. And the liberals need only one of the conservative Justices to vote with them in order to sustain the subsidies for the federal exchanges--thereby, saving the health insurance purchased with those subsidies, as well as saving Obamacare itself.

It would seem likely that at least one of the conservatives--Chief Justice Roberts or Justice Kennedy--will be less partisan and ideological on this issue than the others. As for Roberts, he cast the deciding 5th vote in NIFB v. Sibelius (2012) to uphold the Affordable Care Act against constitutional challenge. And he is the Chief Justice.

As in that previous case, does the Chief Justice of the United States really want the Court he leads to look so hopelessly partisan that all the Democratic Justices vote to uphold a Democratic President's initiative, and all the Republican Justices vote against it? And as the Chief Justice, does he really want to be seen as the leader of a Court that effectively took health insurance away from millions of lower-income workers and their spouses and children? Does he really want to be seen as endorsing the concept that his Court ought to disregard the consequences of its decisions--regardless of how drastic?

As for Justice Kennedy, he oftentimes votes with the liberals on social issues, e.g., gay rights and the death penalty. Indeed, he sometimes raises the ire of his more conservative colleagues for being less of a true believer. Moreover, he is not an adherent of the notion that judicial decisions ought to be uninfluenced by their consequences.

On the other hand, in NIFB v. Sibelius, Kennedy did make plain his hostility to Obamacare in his joint dissenting opinion with Justices Scalia, Thomas, and Alito. So he may be less likely to vote with the liberals in this latest challenge to Obamacare than Roberts would be.

Of course, who really knows. But it does seem more likely than not that the decision will be the 4 liberals plus the Chief Justice (with a more outside chance of Kennedy) weighing the consequences and thus voting to uphold the subsidies for federal exchanges.
We'll see pretty soon.

Next up, the cases dealing with lethal injections and the confederate flag on license plates.