Thursday, June 25, 2015

Game Over, Obamacare Haters

hief Justice John Roberts’s lone substantive interjection during oral arguments in King v. Burwell hinted at a fox-like deviousness. Perhaps the Affordable Care Act’s subsidies should survive in all states, but perhaps, too, the law is ambiguous enough that a future Republican president could discontinue those subsidies in states that didn’t establish exchanges.

Keep the dream of hobbling Obamacare alive, but also leave it in the realm of politics.
But Roberts did something different, and deeply unexpected, instead. He wrote an opinion, preserving all subsidies, that marks the end of the line for Obamacare’s most zealous challengers. Before Thursday morning, most close Court watchers believed there were about five plausible outcomes inKing. Roberts sidestepped all of them.
Instead, he authored an opinion, joined by the Court’s four liberals, and conservative Justice Anthony Kennedy, that leaves the law’s challengers with the measliest of consolation prizes: He allowed that they, in all their certitude of hindsight, weren’t completely insane. They put forth a plausible-seeming construction of the statute, but one that’s ultimately impermissible, in part because their supporting theory—that Congress intended to use the law's subsidies as a weapon against states—is completely risible. The King v. Burwell story ends today.
“Petitioners’ arguments about the plain meaning…are strong,” the opinion concludes. “[But] the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
The Court’s majority holds that the text at issue—"an Exchange established by the state," the ACA states—“is properly viewed as ambiguous,” and plausibly “refers to all Exchanges—both State and Federal—at least for the purposes of the tax credits.”
Which is to say, the government was within its rights to distribute tax credits through all exchanges in every state, regardless of their provenance.
The typical underpinning of a holding like this would be what’s known as “Chevron deference,” a canon which assumes that when statutes are ambiguous, Congress has implicitly delegated authority to federal agencies to interpret them. But Roberts and the majority determined that this standard should not apply. That ambiguity aside, the statute compels the IRS to issue tax credits in every state.

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