Why Roberts got it right

In the Oba­macare case, the high court didn’t re­write the law, it read it.

Los Angeles Times - - OP-ED - By Ni­cholas Ba­gley Ni­cholas Ba­gley is an as­sis­tant pro­fes­sor of law at the Univer­sity of Michigan.

The Supreme Court’s de­ci­sion Thurs­day in King vs. Bur­well is a huge win for sup­port­ers of the Af­ford­able Care Act. It’s also a huge win for com­mon sense in statu­tory in­ter­pre­ta­tion.

Pres­i­dent Obama’s sig­na­ture law in­vited the states to es­tab­lish ex­changes through which their res­i­dents could buy health in­sur­ance and, if el­i­gi­ble, ac­cess sub­si­dies. In the end, how­ever, only 16 opted to do so. The other 34 states chose to rely on Healthcare. gov, the fed­er­ally run ex­change cre­ated on their be­half.

In a highly tech­ni­cal pro­vi­sion, the law sets out a for­mula for the size of the sub­sidy, with ref­er­ence to the cost of a health plan bought through “an Ex­change es­tab­lished by the State.”

The plain­tiffs, ea­ger to dis­man­tle the Af­ford­able Care Act, seized on this lan­guage to ar­gue that sub­si­dies weren’t avail­able to res­i­dents of the 34 states that failed to es­tab­lish their own ex­changes. The ex­changes in those states weren’t “es­tab­lished by the State,” they said — so no sub­si­dies.

Why would Congress have wanted to with­hold sub­si­dies in states that failed to es­tab­lish their own ex­changes? That’s a hard ques­tion to an­swer, given that the whole point of the statute was to ex­pand ac­cess to health in­sur­ance. But the plain­tiffs con­cocted a story. Maybe Congress re­ally liked state ex­changes, they said, and wanted to put pres­sure on states to set them up. Af­ter all, few, if any, states would refuse to cre­ate an ex­change if it meant the loss of hun­dreds of mil­lions of dol­lars to their res­i­dents.

The plain­tiffs’ po­si­tion has al­ways re­minded me of an old Amelia Bedelia story. When the lit­eral­minded but big­hearted house­keeper is told by her em­ployer to weed the gar­den, she de­cides to plant a big row of re­ally big weeds. “She said to weed the gar­den,” in­sists Amelia Bedelia, “not un­weed it.”

When asked why any­one would want more weeds, Amelia Bedelia has to stop and think. “Maybe veg­eta­bles get hot just like peo­ple,” she says. “They need big weeds to shade them.”

Writ­ing for a six- jus­tice ma­jor­ity, Chief Jus­tice John. G. Roberts Jr. rec­og­nized that the plain­tiffs’ at­tempt to ex­plain why Congress would with­hold sub­si­dies for res­i­dents of some states was ev­ery bit as “im­plau­si­ble” — his word — as Amelia Bedelia’s no­tion that veg­eta­bles need shade. In his view, other pro­vi­sions of the statute demon­strated that Congress meant sub­si­dies to be avail­able na­tion­wide.

The chief jus­tice pointed out, for ex­am­ple, that in­sur­ers are re­quired to sell in­sur­ance to all com­ers, no mat­ter how sick. That’s true in ev­ery state, not just the states that set up their own ex­changes. As the chief jus­tice rec­og­nized, how­ever, the com­bi­na­tion of this anti- dis­crim­i­na­tion rule and the loss of sub­si­dies would wreak havoc on the fed­eral ex­changes.

The sub­si­dies are sub­stan­tial, av­er­ag­ing $ 3,264 a year. Healthy peo­ple who couldn’t af­ford to pay the full sticker price for in­sur­ance would drop their cov­er­age, leav­ing sicker peo­ple be­hind. In­sur­ers would then have to in­crease their prices to cover the healthcare costs of those sick peo­ple, push­ing still more healthy peo­ple to shed cov­er­age.

In other words, the chief jus­tice wrote, the loss of sub­si­dies would “desta­bi­lize the in­di­vid­ual in­sur­ance mar­ket in any State with a Fed­eral ex­change, and likely cre­ate the very ‘ death spi­rals’ that Congress de­signed the Act to avoid.”

The chief jus­tice brushed aside the plain­tiffs’ con­tention that Congress meant to threaten the desta­bi­liza­tion of state in­sur­ance mar­kets to force the states to cre­ate ex­changes. To the con­trary, the law specif­i­cally an­tic­i­pated that some states would de­cline to set up ex­changes by pro­vid­ing for a fed­er­ally run ex­change.

Why read the statute to pun­ish lag­gard states? As the chief jus­tice wrote, “Congress passed the Af­ford­able Care Act to im­prove health in­sur­ance mar­kets, not to de­stroy them.”

In a heated dis­sent, Jus­tice An­tonin Scalia took is­sue with the ma­jor­ity’s will­ing­ness to look be­yond lit­eral mean­ing, ar­gu­ing that the de­ci­sion “rewrites” the law “un­der the pre­tense of in­ter­pret­ing it.”

“Words no longer have mean­ing,” Scalia wrote, “if an Ex­change that is not es­tab­lished by a State is ‘ es­tab­lished by the State.’”

That sounds snappy, but Scalia is wrong. He’s the Amelia Bedelia of the Supreme Court, who would trans­form statu­tory in­ter­pre­ta­tion into a game of gotcha, where slip­shod draft­ing is an ex­cuse to ig­nore per­sua­sive clues about what Congress meant to com­mu­ni­cate.

Words do still have mean­ing. It’s just that read­ing the law as a whole — keep­ing in mind what it aims to ac­com­plish and how it goes about ac­com­plish­ing it — is the right way to fig­ure out what those words mean, not blink­ered lit­er­al­ism.

Any­one who knows any­thing about gar­den­ing knows that you don’t plant weeds to help veg­eta­bles. And any­one who knows any­thing about how the Af­ford­able Care Act works knows that Congress didn’t in­tend it to dev­as­tate health- in­sur­ance mar­kets.

As the chief jus­tice rightly ap­pre­ci­ated, the broader statu­tory con­text thus con­firmed that Congress could not have meant what, taken out of con­text, it seems to have said. That’s not rewrit­ing the law. That’s read­ing it.

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