I read another article this morning about the political justifications that Chief Justice Roberts might use when deciding how to vote in the new Obamacare case before the Supreme Court. The article went on at length about the politics of the situation, but it was nonsensical because it failed to mention the requirements of the law in coming to a decision. Even worse, the article was written by a law professor. The real truth is that the justices of the Supreme Court are extremely likely to vote on the basis of the simple rules of interpretation of statutes.
Let's back up a bit and review how this all plays out. The issue before the Court is what is the meaning of language in the Obamacare statute that says that subsidies can be given only to people who buy insurance on an exchange established by a state under a particular section of the statute. Thirty-four states did not establish such exchanges, so the federal government established and exchange that covered those states. The question then is whether or not folks who bought policies on the federal exchange can get subsidies given the language of the statute. If the answer is that no subsidies are available, then millions of policies will no longer be affordable and those people will lose coverage. On top of that, in the states without subsidies, there will be no individual mandate or employer mandate under other language in the statute. The reality is that Obamacare will have ended for the most part in those 34 states.
The Obama administration ruled long ago that despite the language of the statute, subsidies could be paid to anyone who bought a policy on the federal exchange as well as on the state exchanges. The problem facing the Supreme Court is that the statute seems pretty clearly not to say that.
The rules for enforcing a statute are well established. Courts are required to enforce statutes as they are written. The courts are not allowed to rewrite the statutes. Even if the statute was written incorrectly by Congress, the courts cannot change the text; only Congress can make changes of that sort. Only if the language is unclear or ambiguous can the courts provide clarification. Regarding the Obamacare issue, this means that the Supreme Court will have to determine if the language is clear or not. If the language is clear, then the justices have to enforce it as written. This may sound more simplistic than it really is. When Congress wrote about giving subsidies to people who bought policies on exchanges "established by a State", did they mean to include the ones established by the federal government too? There are all sorts of convoluted arguments about this point. For the Obama administration, however, the one big problem is that the statute actually limits subsidies to buyers of policies on exchanges "established by the State under section 1311 of the" Obamacare statute. Section 1311 provides only for states to open exchanges. Section 1321 provides that in those states that choose not to open exchanges the federal government can do so. As a result, the statute is extremely clear that subsidies only go to those who buy on state-established exchanges and not on the federal exchange. Without ignoring the clear language of the statute, the Supreme Court cannot rule in favor of the administration.
We all know that president Obama does not feel constrained by the rules of law or even the terms of the Constitution. The Supreme Court, however, has not displayed any basis for one to assume that this institution will likewise throw away the rules of law to get the result it wants. Oh, some of the justices may vote for the administration position, but in the end, the rule of law will almost certainly prevail. The Court will rule that Congress alone can change the clear language of the statute. It will be up to Congress to decide if these subsidies are to be extended to people in states without state exchanges.
Let's back up a bit and review how this all plays out. The issue before the Court is what is the meaning of language in the Obamacare statute that says that subsidies can be given only to people who buy insurance on an exchange established by a state under a particular section of the statute. Thirty-four states did not establish such exchanges, so the federal government established and exchange that covered those states. The question then is whether or not folks who bought policies on the federal exchange can get subsidies given the language of the statute. If the answer is that no subsidies are available, then millions of policies will no longer be affordable and those people will lose coverage. On top of that, in the states without subsidies, there will be no individual mandate or employer mandate under other language in the statute. The reality is that Obamacare will have ended for the most part in those 34 states.
The Obama administration ruled long ago that despite the language of the statute, subsidies could be paid to anyone who bought a policy on the federal exchange as well as on the state exchanges. The problem facing the Supreme Court is that the statute seems pretty clearly not to say that.
The rules for enforcing a statute are well established. Courts are required to enforce statutes as they are written. The courts are not allowed to rewrite the statutes. Even if the statute was written incorrectly by Congress, the courts cannot change the text; only Congress can make changes of that sort. Only if the language is unclear or ambiguous can the courts provide clarification. Regarding the Obamacare issue, this means that the Supreme Court will have to determine if the language is clear or not. If the language is clear, then the justices have to enforce it as written. This may sound more simplistic than it really is. When Congress wrote about giving subsidies to people who bought policies on exchanges "established by a State", did they mean to include the ones established by the federal government too? There are all sorts of convoluted arguments about this point. For the Obama administration, however, the one big problem is that the statute actually limits subsidies to buyers of policies on exchanges "established by the State under section 1311 of the" Obamacare statute. Section 1311 provides only for states to open exchanges. Section 1321 provides that in those states that choose not to open exchanges the federal government can do so. As a result, the statute is extremely clear that subsidies only go to those who buy on state-established exchanges and not on the federal exchange. Without ignoring the clear language of the statute, the Supreme Court cannot rule in favor of the administration.
We all know that president Obama does not feel constrained by the rules of law or even the terms of the Constitution. The Supreme Court, however, has not displayed any basis for one to assume that this institution will likewise throw away the rules of law to get the result it wants. Oh, some of the justices may vote for the administration position, but in the end, the rule of law will almost certainly prevail. The Court will rule that Congress alone can change the clear language of the statute. It will be up to Congress to decide if these subsidies are to be extended to people in states without state exchanges.
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