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posted 10 years ago
Many observers were surprised at the 6-3 majority decision the United States Supreme Court issued in King v. Burwell, upholding the tax credit regime for “health benefit exchanges” under the Patient Protection and Affordable Care Act–widely known as “Obamacare”. In the concluding days of its term just now ended, the Court issued several momentous decisions, with its King v. Burwell ruling followed the very next day by the historic Obergefell v. Hodges case, announcing a federal right to same sex marriage throughout the United States under the Constitution. In advance of these outcomes, many expected the Obergefell result but were startled by the King majority opinion carrying 6 of the 9 Justices, and being authored by the “conservative” Chief Justice John Roberts–who issued one of the dissents from Justice Kennedy’s majority opinion in the Obergefell case.
The Roberts opinion which upheld the Obamacare exchange tax credit system, in its analysis, hews to the conservative model of judicial deference toward Congress and interpretation of congressional acts according to time-honored principles of statutory construction. Justice Roberts scrutinized the intent of the Affordable Care Act, and Congress’s purposes in its creation–including the “long history of failed health insurance reform”. The Court reviewed the key features of the law and their interrelationship, how each worked with others, and the overall intent of the legislative scheme: Justice Roberts repeatedly recited the state of the health insurance market and the congressional intent to save, not jeopardize, its viability with the Affordable Care Act.Thus the Court expressly rejected an interpretation which 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 Roberts majority opinion in King v. Burwell scrutinized the entirety of the Affordable Care Act, the context of its enactment and Congress’s purposes in passing the Act. Justice Roberts concluded that the language at issue, whether a health benefit exchange was “established by the State” for purposes of qualifying for tax credits, was legally ambiguous in the circumstances presented–wherein the exchange at issue was created by the federal government rather than the state. In reaching this conclusion, the author of the majority focused upon the Act as a whole, and noted the circumstances of its consideration and passage, which included “more than a few examples of inartful drafting.” Due to its hasty passage during the “complicated budgetary procedure known as ‘reconciliation,’ which limited opportunities for debate and amendment,” the Affordable Care Act reflected ambiguous and inconsistent contents requiring the high court’s correction.
In reaching this result, Chief Justice Roberts addressed dissenting Justice Antonin Scalia in several footnotes. In his dissenting opinion, Justice Scalia retorted to the majority opinion, in a duel of statutory construction between Justices Roberts and Scalia. True to form and philosophy, Justice Scalia’s dissent is barbed and blunt: he accuses the majority of reaching a “quite absurd” result, and disregarding the plain, literal words of the Affordable Care Act in order to find a result which upholds its effectiveness. “Words no longer have meaning if an Exchange that isnot established by a State is ‘established by the State.’” Justice Scalia, hearkening back expressly to the 2012 Roberts majority opinion which salvaged Obamacare from its earlier challenge on other grounds before the Court, accused the majority of political motivations and ends-justifying-means methodology: “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
For lawyers, students and educators, the King v. Burwell majority opinion and accompanying dissent are rich and thickly woven with legal principles concerning the proper role of appellate courts, the extent of the legislative and judicial branches, and how courts properly divine the intent of the legislative bodies which enact statutes. The competing analytic frameworks which Justices Roberts and Scalia employ to yield contrary results, simplistically stated, respectively reflect broad, contextual review versus focused, literal scrutiny of words and phrases. Both authors can be properly viewed as traditional, even conservative, following this decision, though of very different temperaments and viewpoints in many important ways. In reading rulings shot through with deep social, political and economic importance such as King v. Burwell, we are all reminded that the intersection between law and politics is hazardous and poorly marked, and we must move through it cautiously and ever aware of suddenly approaching objects from any direction.
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