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Supreme Court Rewrites Obamacare, Again

This morning, the U.S. Supreme Court ruled for the Obama administration in King v. Burwell, upholding the legality of health insurance tax credits for people in the 36 states that haven’t set up insurance exchanges under Obamacare. Chief Justice John Roberts wrote for the Court, while Justice Antonin Scalia dissented, joined by Justices Alito and Thomas.

Unlike the major Obamacare case decided by the Supreme Court in 2012, NFIB v. Sebelius, today’s decision in King doesn’t concern the law’s constitutionality. Instead, the case challenged an IRS regulation interpreting the meaning of the Affordable Care Act (ACA)—better known as Obamacare. The law says that many low- and middle-income Americans can get “premium assistance” to help them pay for health insurance. This assistance comes in the form of income tax credits, hence the IRS’s involvement.

But according to the ACA provision that explains how the IRS calculates which taxpayers are eligible for tax credits, a person cannot get a tax credit unless she’s enrolled in a health care plan offered by “an Exchange established by the State.” This may sound like a technicality, but it’s actually a very big deal, because Obamacare lets each state (and the District of Columbia) decide whether to set up a health insurance exchange. Only 14 states and D.C. have established their own exchange; in the remaining 36 states, individual health insurance is available through Healthcare.gov, an exchange run by the federal government.

Despite the plain language of the law, the Court decided that an “Exchange established by the State” actually means “Exchange established by the State or the Federal Government.” The majority reasoned that Congress couldn’t possibly have intended to deny health insurance subsidies—or the individual coverage mandate—in states that opted not to set up their own exchanges. Otherwise, the Court feared that in the 36 states where the federal government runs the exchange, the absence of subsidies would lead to a “death spiral.” Healthy people would forego costlier health insurance, while sicker and older people would keep paying, sending prices higher and higher.

If a state were worried about such a death spiral, however, all it would need to do is establish its own exchange—for which the subsidies would offer an incentive. But the Court rejected the notion that Congress might have actually designed Obamacare to work this way, siding instead with the administration’s position that lawmakers never intended to encourage states to set up their own exchanges by linking them with valuable health insurance subsidies. So the Court rewrote the law, much as it did in NFIB v. Sebelius, which held that the “penalty” Obamacare imposes on people who fail to buy health insurance is actually a “tax.” (Never mind that a bill with the word “tax” in it may not have passed Congress.)

The Court’s explanation for why Congress didn’t really mean what it wrote regarding who can get tax credits is unpersuasive. The majority points to several parts of the Act that would supposedly make no sense if subsidies were available only in states that established their own exchange. But the majority’s version of the law creates irregularities of its own. The dissent identifies several obligations imposed on “an Exchange established by the State” that cannot logically apply to states where the federal government operates the exchange. Instead of reading the law to mean what it says, the Court rewrote the Act’s plain language to avoid some minor oddities.

Moreover, the subsidy provision doesn’t seem to be an accident. As the dissent notes, the very phrase the Court rewrote—“an Exchange established by the State under section 1311”—appears in the Affordable Care Act not once, but seven times. In other parts of the Act, only the word “Exchange” is used. The Court dismissed this aspect of the law as the byproduct of “inartful drafting,” and thus replaces the text Congress actually wrote with words that make more sense to the six Justices in the majority.

Speaking of Congress’s intent, Obamacare narrowly passed both houses of Congress thanks to a series of political compromises, one of which entailed the states taking the lead in health care reform so as to prevent the creation of a “national exchange.” Yet, by siding with the Obama administration, the Supreme Court has eliminated a major reason for states to create their own insurance exchanges. Indeed, as an article in today’s The New York Times notes, the Court’s ruling in King “may have just killed state-based exchanges.” This outcome is precisely the opposite of what Congress intended in passing Obamacare, which envisioned the federal health insurance exchange as a backstop—not as the nation’s primary marketplace for buying health insurance.

On the bright side, if one exists, the Court didn’t resolve this case under a longstanding doctrine known as Chevron deference, which holds that a court should give a federal agency the benefit of the doubt when it interprets the meaning of an unclear law. Instead, noting the “economic and political significance” of the legal question before it, the Court took it upon itself to decide the meaning of the Affordable Care Act without deferring to the administration or to the IRS. Even if the Court reached the wrong outcome today, it reaffirmed the principle that when Congress wants to let an agency decide an extremely important question, the law must clearly delegate such power to the agency.

To hear CEI’s General Counsel Sam Kazman discuss the ruling, click here.