KHN Video Analysis

Why Did The Supreme Court Uphold The Health Law’s Subsidies?

The Supreme Court Thursday upheld a key part of the 2010 health law – tax subsidies for people who buy health insurance on marketplaces run by the federal government. KHN’s Mary Agnes Carey discusses the decision with Stuart Taylor Jr., of the Brookings Institution, and KHN’s Julie Appleby.

MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

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