The U.S. Supreme Court today dealt a major blow to conservatives who have used everything from bare-knuckle politics to legislative sleight-of hand to frivolous litigation in a years-long effort to destroy the Affordable Care Act, a flawed but ultimately workable effort to bring affordable health care to all Americans as well as President Obama's signature achievement.
In a momentous 6-3 ruling, Chief Justice John G. Roberts Jr. wrote in the majority opinion, as I had predicted, that Washington may indeed provide tax subsidies to help poor and middle-class people buy health insurance through federal-run exchanges. He and Justice Anthony Kennedy and the four justices in the court's so-called liberal bloc found that there was no merit to the claim of the cynically motivated and Koch brothers-bankrolled plaintiffs in King vs. Burwell that although the law familiarly known as Obamacare seems to say the subsidies are available only to people buying insurance on "an exchange established by the state," those words must be understood in a larger statutory context.
"In this instance,” Roberts wrote in a blow for reason over mean-spirited political gamesmanship, "the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. . . . 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."
The Supreme Court has become a tarnished institution, but it is to the credit of Roberts and the concurring justices that they interpreted the ACA and did not try to rewrite it. Said Roberts: "In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—to say what the law is."
As expected, the court's three most conservative members -- Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. -- dissented. Scalia ignored the fact the entire case rested on a four-word legislative glitch and accused the majority of "interpretive jiggery-pokery" in an ideological farce of a case the court never should have taken up in the first place. "We should start calling this law SCOTUScare," the reliably spiteful justice added.
The case was freighted with heavy baggage.
An estimated 32.2 million people are enrolled in health insurance plans on state and federal exchanges under the ACA, while the percentage of adults who lack health insurance is at a record low of 11.9 percent, according to a new Gallup-Healthways poll. But had the court ruled for the plaintiffs, an estimated 7 million people in 34 states with federal exchanges would be impacted and their health care costs could spike by almost 300 percent, according to some estimates.
The court's majority seemed particularly concerned about the consequences if the federal exchanges, with their subsidies for low- and some middle-income people, imploded. Or as Roberts put it, "The combination of no tax credits and an ineffective coverage requirement could well push a state's individual insurance market into a death spiral." And let's not forget that the court is reliably pro-big business, in this instance the gigantic health care and insurance industries.
The knots that Republicans have tied themselves in over the ACA had been getting tighter and tighter.
After years of condemning the greatest leap forward in health-care reform since Medicare laws were enacted in 1966, including scare mongering about "death panels" and other lies on an epic scale, as well as dozens of unsuccessful House repeal votes, the GOP noise machine has fallen silent. This is because a growing majority of Americans now understand that Obamacare works, warts and all, and the GOP would have been faced with some very unpleasant realities if the Supreme Court granted the party its wish and gutted the law.
Republicans, who control both houses of Congress, would not have known what to do if the high court nixed the federal exchange subsidies, while extending those subsidies by congressional fiat would have incurred the the wrath of the party's reliably cantankerous conservative base and most of the dozen or so (but then who's counting?) wannabes crowded into the GOP presidential primary clown car.
The Obama administration professed to have no back-up plan.
The decision was the second major high court ruling for the ACA and the second written by Roberts. In the first in 2012, the plaintiffs unsuccessfully argued that the individual mandate provision of the law -- requiring people who lack health insurance to buy it -- was unconstitutional because Congress overstepped its bounds in regulating interstate commerce, while the provision in the law expanding Medicaid to cover millions of additional low-income people was an unconstitutional use of power over the states.
While Republicans have been all over the place in fighting Obamacare, their core arguments have been that requiring Americans to buy health insurance is a violation of their "freedom and liberty" and the law "a massive power grab" by the president.
Beyond helping those 32.2 million people buy health insurance, the law caps insurance premiums for the poor, helps those under age 26 stay on their parents' health plans, protects those with pre-existing conditions, covers mental health care, requires insurers to spend most of every premium dollar on medical care, as opposed to administrative and advertising costs, has accelerated a modest decrease in health care costs, and provided generous tax credits to small businesses who provide health insurance for their employees.
Federal marketplace subsidies appear to be doing exactly as was intended.
Some 87 percent of people enrolled in those marketplaces receive subsidies in the form of tax credits to help pay their insurance premiums, and many would otherwise be unable to buy insurance. The subsidies also appear to have attracted younger and healthier individuals into the new insurance markets, stabilizing premiums, even for people who pay the full cost themselves.
It should not be forgotten, however, that the ruling is a victory for the profit-greedy health care and health insurance industries, further decreasing the chances of a fairer and more cost-effective and fair single-payer system.
Conservatives in general and Republicans in particular have now been handed their teeth on Obamacare in Congress (2010), at the ballot box (2012), and twice in the Supreme Court (2012, 2015), so it is difficult to see where they might now turn despite their claims that Obamacare remains deeply unpopular. In fact, 47 percent of Americans approve of the law in the latest New York Times/CBS News poll, a five-year high, and pollsters find that the more people understand what the law is about the more people approve of it.
Republicans facing re-election in states with federal exchanges are sure to have been secretly relieved that they won't face the inevitable backlash a ruling against the law would have provoked. And the decision provides an opportunity for a bipartisan effort to improve aspects of the law that need fine tuning. That is not going to happen, of course, and within minutes of the decision being announced there were predictable demands that Republicans controlling the House and Senate increase their efforts to repeal the law through a filibuster-proof budget procedure known as reconciliation.
The problem for the GOP is that President Obama would never sign repeal legislation, reconciliation is an iffy procedure, and efforts to nibble away at aspects of the law faces mixed chances of success. While the House voted this week to eliminate a special payment advisory board created by the law in a worthy effort to hold down costs because of specious claims that the board would ration health care, the proposal stands no chance in the Senate where it can be filibustered by Democrats.
"The American people believe both subsidies and mandates are wrong, so it's now up to Congress to use reconciliation to repeal Obamacare, and Congress should continue to do so until there is a president who is willing to sign that repeal,” harrumphed David McIntosh, a former Republican House member who is president of the free-market Club for Growth.
If that president is Hillary Clinton, then it will be more of the same Republican whining and obfuscation. But if a Republican wins next year, which is a long shot at this point, all bets are off.