Revisiting the pending Supreme Court Obamacare challenge
has been interesting, and it is important to do so generally because - as the last challenge showed
- a swing Justice or two often may keep reading and deciding late into the game.
It is no mystery that Supreme Court cases are often determined as much, if not more, by politics than "the Law." So, dispensing with the legal niceties (that overwhelmingly favor upholding the ACA), let me explain what I think is the real political issue being determined in King v. Burwell: which side needs to win the "second vote" to prevail? And also how Justice Roberts, a savvy guy, may try to massage the issue.
There are three core political facts about the ACA: 1) Democrats passed the ACA into law, 2) Republicans opposed it originally and now want to repeal it, and 3) neither side has the voting power to successfully re-litigate their position. Democrats no longer have the legislative control to save or "fix" the law, and Republicans don't have the filibuster-proof, veto-proof majorities to repeal the law. So, however "inertia" is defined - which side needs to win the second vote to prevail - controls whether Obamacare continues, or not.
By the usual standards, Democrats have the supreme advantage. Obamacare is the law of the land, and unless Republicans can repeal it (i.e., win the second vote), Obamacare will remain the law of the land. Republicans know that they (or the Democrats) cannot win the second vote, and that is where the genius (if you will) of the latest King v. Burwell case comes in. In King, Republicans are arguing that the statute contains a drafting error, or a hitherto unknown expression of intent, that . . . . unless Congressionally changed . . . spells doom for Obamacare. It's built right into their case: "we read the law in a way that requires further legislative action . . . or millions will lose heath insurance coverage and the exchanges will go into a death spiral. BTW: good luck winning that second vote; inertia is now on our side."
And Republicans would be right: whoever has the burden of winning that second vote is likely going to lose this fight.
At oral argument, the Republican justices showed that they understood this political dynamic entirely. As Justice Scalia almost taunted:
JUSTICE SCALIA: I mean it may not be the statute they [Congress] intended. The question is whether it's the statute that they wrote . . . .
Or, later, in a famous exchange:
JUSTICE SCALIA: What about ... what about Congress? You really think Congress is just going to sit there while ... while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the ... you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ... that takes care of the problem. It happens all the time. Why is that not going to happen here?
GENERAL VERRILLI: Well, this Congress, Your Honor, I ... I
GENERAL VERRILLI: You know, I mean, of course, theoretically of course, theoretically they could.
JUSTICE SCALIA: I ... I don't care what Congress you're talking about. If the consequences are as disastrous as you say, so many million people without . . . without insurance and whatnot, yes, I think this Congress would act.
Did you see that? Scalia is saying that there should be a Congressional "second vote" - not to repeal the ACA, but to save it. After much laughter, he was explicit: "I don't care what Congress you are talking about," Congress "would act" - even if it means doing nothing (which would likely kill Obamacare). After all, Scalia is not saying that Congress needs to act, but only that it would "[i]f the consequences are as disastrous as you say . . ." Maybe they aren't . . . that is up to Congress to decide in a second vote as to whether the ACA survives.
Justice Alito got some notice for proposing the same dynamic:
JUSTICE ALITO: Would it not be possible if we were to adopt Petitioners' interpretation of the statute to stay the mandate until the end of this tax year as we have done in other cases where we have adopted an interpretation of the constitutional or a statute that would have very disruptive consequences such as the Northern Pipeline case?
Again, Justice Alito is saying, "Hey, we can stay our decision until the end of the year. You know, give you a last chance to undo this ruling through Congress. What do you want? 6 months? A year?" But instead of being 6 months or a year to repeal
Obamacare, this would be 6 months or a year to preserve
Obamacare - to win the second vote. Alito reasonably believes that won't happen and so offers . . . "you want a 6 month stay, 8 months?" The length of the stay is not so important; what is important is switching who wins when the stay runs out . . . the pro-ACA or the repeal-ACA crowd. Because neither side is going to win during such stay; so, who wins by inertia? Alito and Scalia want to make sure that is the repeal-ACA crowd.
To the extent this dynamic is not obvious, Justice Roberts - the likely swing vote who previously (and responsibly) saved the ACA from the last challenge - made the idea explicit, but in a compromise way:
CHIEF JUSTICE ROBERTS: If you're right ... if you're right about Chevron, that would indicate that a subsequent administration could change that interpretation?
GENERAL VERRILLI: I think a subsequent administration would need a very strong case under step two of the Chevron analysis that that was a reasonable judgment in view of the disruptive consequences. So as I said, I think you can resolve and should resolve this case because the statute really has to be read when taken as a whole to adopt the government's position. But I do take . . .
See? Roberts understands the "second vote" concept, but surprised a lot of people with a creative twist. Roberts hinted: "There is a way for me to rule for the Obama administration now, but by keeping this as an Executive interpretation, the next President can simply reverse it." (Verrilli notably agreed.) "There is your second vote," I bet Roberts was thinking, "but it won't be the Supreme Court's doing and it will at least involve a presidential election debate and outcome."
If I am right, Roberts was essentially saying that our current inertia entrenches Obamacare, but maybe only until the next presidential election. Republicans will only need to win the White House, but will also have to deal with the political realities of a law in place for many years. If I am right, it is a classic, conservative judicial punt. We will see . . .
BTW: while I am guessing that Roberts may have a nuanced, middle position, I don't want to be seen as endorsing or praising it. I think the King case is frivolous and so wrong on the merits that there is no excuse for this type of politics. But I am not on the Supreme Court. If you want my grudging view of what is really being debated . . . it is the above: "who should we require to win the second vote?" At the end of the day, I predict Roberts and Kennedy will rule that Republicans need to win that second vote, but may try to help them in the process. Like, as discussed above, make the key issue a matter of executive discretion, not law.