Supreme Court preserves subsidies

The much-anticipated Supreme Court 6-3 ruling in King v. Burwell, upholding the key provision of the Affordable Care Act (ACA) regarding tax credit subsidies payable to economically eligible persons, while wildly anticipated, is unsurprising. Neither, is the majority opinion, for that matter, or the fact that it was written by Chief Justice John Roberts.

This marks the second time that the Chief Justice has authored a controversial decision rescuing the ACA from judicial uprooting. In National Federation of Independent Business v. Sebelius, the Chief Justice opined that-despite the way it was originally described by the Administration and its supporters in the Congress and the statute itself as a “penalty” (questionable under the Constitution’s Commerce Clause) to which certain non-purchasers of health insurance would be subjected under the individual mandate-the penalty actually should be treated as a tax (consistent with the Constitution’s taxation provision). This time, I believe, the Chief Justice was on stronger legal and logical ground as to the ACA’s tax credit provision.

Related:Health plans share reactions to King v. Burwell

On its face, the provision at issue in King limited the relevant subsidies to persons who could participate in “an Exchange established by the State under [42 U. S. C. §18031].” To Justice Scalia and the other two dissenters, this apparently plain language should have ended the inquiry. Thus, Scalia chastises the majority for having created “SCOTUScare” and having engaged in “somersaults of statutory interpretation.”

 

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