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Symposium: However King was decided, the future of American health care was going to come down to 2016

Randy E. Barnett, is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he directs the Georgetown Center for the Constitution. He was one of the lawyers representing the National Federation of Independent Business in NFIB v. Sebelius.

Throughout the pendency of King v. Burwell, I have not written about the merits of the case. Nor did I file or join any amicus briefs. This was because there was no constitutional issue on which I held an expert opinion, and I found the dispute over statutory construction to be very complicated. I admit that I was more persuaded by the challenger’s position. But I knew that the administration’s defenders such as Abbe Gluck and Nick Bagley had a reasonable-sounding if perhaps overly-complex argument, which was based on the text of the statute, rather than on either improper appeals to its overall purpose or to implausible assertions of scrivener’s error. My sole contribution to this controversy was to urge Congressional Republicans back in December to start working on a replacement for Obamacare should the Court invalidate the availability of insurance subsidies on federal exchanges.

Having refrained from opining about the merits of the case before today, I am not going to start now. I find the opinion by the Chief Justice to be reasonable-sounding — just as I found those of Abbe and Nick. But I find Justice Scalia’s dissenting opinion ultimately to be more compelling — just as I found the arguments of Jonathan Adler and Michael Cannon, the legal architects of this challenge.

In one respect, however, the Chief Justice’s opinion was troubling for reasons that do cut across my own expertise. On the one hand, I was pleased to see that, instead of employing “Chevron deference,” he directly engaged in interpreting the statute as is his judicial duty. And it was good as well that the thrust of his opinion purports to appeal to the purpose of the statute because its text is ambiguous. However, in a final passage, which will no doubt be widely quoted by future litigants, he appears to suggest that causation runs the other way:

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. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

To the extent that this – and not genuine textual ambiguity – is what is driving his opinion, then the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government. And, if the government needs such a thumb on the scale, then this only reinforces my sense that the challengers actually have the better of the argument.

Weeks ago, with some hesitation, I accepted SCOTUSblog’s invitation to contribute to this symposium. I did so because I consider the grossly misnamed Affordable Care Act to be an egregious public policy that will degrade and destroy the quality of American health care, and I welcomed the opportunity to consider the effect of however the Court might rule in King v. Burwell on the political effort to repeal and replace Obamacare.

I support our constitutional system of checks and balances because it provides many avenues to block the adoption of bad legislation. The downside is that, once legislation is enacted, that same system effectively blocks its repeal. This is what the supporters of the ACA have been counting on since ramming it through both houses of Congress on a straight party-line vote. The ACA was unpopular then, and it remains unpopular today. Since it was enacted, the control of both houses of Congress has changed – largely due to this issue.

Now, only the veto power of the president, supported by an adamant Democratic minority in Congress stands between us and meaningful health insurance reform that will improve rather than harm American health care. Had the IRS regulation been invalidated today rather than upheld, we would have had a golden opportunity to redress the error of the ACA by enacting real health insurance reform. For this reason, I rooted for the challenge to succeed, but it was not to be. For me, the truly sad result of today’s decision – like that in NFIB – is that another opportunity for genuine health insurance reform has been lost.

One consolation is that, were President Obama to have vetoed whatever the Republicans would have proposed, nothing good would happen until after the next election, which is where things now stand. Now Congressional Republicans cannot be bull-rushed into simply extending the subsidies to federal exchanges, while implicitly accepting the rest of the ACA, which is how things were shaping up. Now the voters will truly get at least one more crack at saving American health care from Obamacare. (And, with the health care cases in mind, candidates can debate the sort of justices they will nominate to the Court.)

Supporters of the law have already telegraphed that their next move is to end the political debate by urging a Pax Obamacare to which all Americans must acquiesce. Last week the president said, after “five years in, what we are talking about it is no longer just a law. It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare . . . This is now part of the fabric of how we care for one another.”

While the ACA is certainly the “law of the land,” as it has been since its enactment, nothing in the Court’s decision today imparts any additional legitimacy on this law as a public policy meriting political acquiescence. To borrow from the president’s words, it is still “just a law.” So nothing in this decision should deter Republican presidential and congressional candidates in the 2016 election from continuing to press their campaign to “repeal and replace” Obamacare.

Recommended Citation: Randy Barnett, Symposium: However King was decided, the future of American health care was going to come down to 2016, SCOTUSblog (Jun. 25, 2015, 12:16 PM),