Obamacare survives at
the Supreme Court, again

By Jennifer Rubin | Washington Post | June 25, 2015

Supreme Court Building in Washington, DCFor the second time, in an opinion authored by Chief Justice John Roberts, the Supreme Court sided with the administration, allowing Obamacare to proceed unscathed. Roberts writing for a six-person majority writes that "we must determine whether a Federal Exchange is 'established by the State' for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines 'State' to mean "each of the 50 States and the District of Columbia"a definition that does not include the Federal Government. 42 U. S. C. 18024(d).

But when read in context, 'with a view to [its] place in the overall statutory scheme,' the meaning of the phrase 'established by the State' is not so clear." In essence he finds that plain language meaning cannot be the right one since if the court gives "the phrase 'the State that established the Exchange' its most natural meaning, there would be no 'qualified individuals' on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange."

In short, Roberts finds that what is clear is not so clear. ("The upshot of all this is that the phrase 'an Exchange established by the State under [42 U. S. C. 18031]' is properly viewed as ambiguous.") Therefore in keeping with the statutory scheme as the court sees it the subsidies should be available. He takes a much deserved swipe at Congress:

The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act's passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through "the traditional legislative process."

Ironically, it's sheer incompetence and poor draftsmanship that wind up saving the law and the administration.

So many commentators felt certain that the court would undo the exchanges that there is profound surprise. I was never exactly sure what the court would do, and if one sees Roberts as intensely concerned about upsetting the political branches (at least at the federal level), this ruling makes sense.

The decision is perversely helpful for conservatives in two ways. First, as with the original Obamacare case, conservatives despite their preference for limited court action put far too much hope in the court rectifying what they see as bad policy. In truth, the solution to bad laws is to elect new leaders and amend or repeal them. The 2008 and 2012 presidential losses were costly and in considering their 2016 standard bearer Republicans should pay particular attention to electability. Second, Republicans are in some sense spared a big, divisive fight over extending the subsidies by new legislative action. We now don't need to hear the likes of Sen. Ted Cruz (R-Tex.) urge his colleagues to leave millions of Americans in the lurch. We don't need to see President Obama shirking his duties. It does however put a high premium in coming up with an Obamacare alternative on which to run in 2016. Republicans seeking the presidency can not beat something with nothing, and a reasonable, less costly plan with greater personal choice should be at the top of every campaign's policy to-do list.

Former Texas governor Rick Perry hit the nail on the head with a quick statement, saying, "While I disagree with the ruling, it was never up to the Supreme Court to save us from Obamacare. We need leadership in the White House that recognizes the folly of having to pass a bill to know what's in it. We need leadership that understands a heavy-handed, one-size-fits-all policy does nothing to help health outcomes for Americans." He added, "With individual premiums up more than 50 percent and nearly 5 million people losing their health plans, Americans deserve better than what we're getting with Obamacare. It's time we repealed Obamacare and replaced it with truly affordable, patient centered-health care reform, and I look forward to laying out my ideas on this issue.

Likewise, Sen. Marco Rubio (R-Fla.) put out a restrained statement, which reads:

I disagree with the Court's ruling and believe they have once again erred in trying to correct the mistakes made by President Obama and Congress in forcing Obamacare on the American people. Despite the Court's decision, ObamaCare is still a bad law that is having a negative impact on our country and on millions of Americans. I remain committed to repealing this bad law and replacing it with my consumer-centered plan that puts patients and families back in control of their health care decisions. We need Consumer Care, not ObamaCare.

He doesn't sound all that upset either.

In short, the president will leave office with his "historic" legislation still on the books. Whether it remains there in its current form will be decided in 2016. And that is pretty much as it should be.

Jeb Bush also has a presidential-sounding statement, which reads in part: "I am disappointed by today's Supreme Court ruling in the King v. Burwell case. But this decision is not the end of the fight against Obamacare. This fatally-flawed law imposes job-killing mandates, causes spending in Washington to skyrocket by $1.7 trillion, raises taxes by $1 trillion and drives up health care costs. Instead of fixing our health care system, it made the problems worse. As President of the United States, I would make fixing our broken health care system one of my top priorities. I will work with Congress to repeal and replace this flawed law with conservative reforms that empower consumers with more choices and control over their health care decisions."