OPINION:
Obamacare lives, through the manipulation of the law and abuse of the language by Chief Justice John G. Roberts. A sloppily written health care law is rescued by a sloppily reasoned opinion, with Mr. Roberts, author of the opinion, suggesting that the law ordinarily couldn’t survive judicial examination, but enabling 6.4 million Americans to continue to get subsidies prohibited by the act seems nevertheless a nice thing for the court to do.
“In this instance,” he wrote, “the context and structure of the Act compels us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Saved, in Mr. Roberts’ imaginative formulation, by an unnatural act.
Congress, wrote the chief justice, “passed the Affordable Care Act to improve health insurance markets, not to destroy them.” But the Act expressly states that the subsidies are intended only for insurance policies bought on state insurance exchanges, and it was this language that Mr. Justice Roberts bridged with what Justice Antonin Scalia calls verbal gymnastics, reached through “interpretive jiggery-pokey.”
The case hinged on the meaning of four words in the Affordable Care Act, describing the eligible exchanges as “established by the state.” The words were apparently too difficult for the Harvard-trained chief justice to understand. He wrote that “meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.”
This echoed Nancy Pelosi’s famous remark during the debate in Congress that “we may have to pass it to find out what’s in it.” Now we know. Taking the four little words at their clear and plain meaning would wreck the president’s scheme, so Mr. Roberts placed them “in context” to erase them.
Justice Scalia, joined in dissent by Justices Clarence Thomas and Samuel Alito, wrote and read in court that “The Court holds that when the Patient Protection and Affordable Care Act says ’Exchange established by the State,’ it means ’Exchange established by the State or the Federal Government.’ That is of course quite absurd …”
Chief Justice Roberts saved Obamacare once before, in 2012, with an equally novel and bizarre legal solution. Instead of imposing a fine on those who decline to purchase health insurance, as successfully challenged in earlier appeals, the government could just call the fine a tax.
President Obama hurried out to the Rose Garden Thursday, with the vice president tagging along, to praise the Supreme Court. “After multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay,” he said. “What we’re not going to do is unravel what has now been woven into the fabric of America.”
But cheap suits usually do unravel eventually, and Obamacare is a cheap suit. Republican presidential candidates leaped to promise further repairs or to repeal Obamacare. “The problem with Obamacare is still fundamentally the same,” said House Speaker John Boehner. He vowed the fight would continue. “It’s raising costs for American families, it’s raising costs for small business and it’s just fundamentally broken. We’re going to continue our efforts to do everything we can to put the American people back in charge of their health care, not the federal government.”
Until then, Justice Scalia, regarded as the author of the best-written opinions of the Supreme Court, offered another way to refer to Mr. Obama’s health-care scheme, using the abbreviation for “Supreme Court of the United States.” Said he, to laughter: “We really should start calling this law SCOTUS-care.”
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