What a deal. The Supreme Court’s Obamacare decision reminds me of a demand that an aide to the late Chicago Mayor Richard J. Daley is said to have given to reporters: Don’t say what the mayor says, say what he
What a deal. The Supreme Court’s Obamacare decision reminds me of a demand that an aide to the late Chicago Mayor Richard J. Daley is said to have given to reporters: Don’t say what the mayor says, say what he means.
Conservatives hoped that the high court would hold congressional Democrats to what they wrote in the Affordable Care Act, better known as Obamacare, which they passed without a single Republican vote.
In particular, conservatives hoped the court would strike down a key provision in the lengthy law that provides tax credits to help qualifying Americans pay for health insurance.
The passage in question authorizes tax credits for those who buy insurance in exchanges that are “established by the state.” Left out of that wording were 6.4 million customers who buy insurance in federal exchanges, which have turned out to be the Obamacare marketplaces in all but 16 states and the District of Columbia.
Without the subsidies in those states, the ACA could collapse. No more Obamacare. That would be just fine with the president’s Republican adversaries but — surprise!
Chief Justice Roberts, an appointee of Republican President George W. Bush, decided to listen not to what the Congress wrote, but to what they meant.
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
He was joined in that view by Justices Anthony M. Kennedy, Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Opposing were Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.
Writing for the minority, Scalia lacerated Robert’s decision with the fury of a right-wing talk show host as “interpretive jiggery-pokery,” a “defense of the indefensible” and “pure applesauce,” among other gems.
“We should start calling this law SCOTUScare,” he wrote in a play on the U.S. Supreme Court’s initials. Scalia was accusing his fellow conservative of legislating from the bench, a no-no particularly in conservative circles. Yet Roberts sounded fearless and thick-skinned as a honey badger in shrugging off Scalia’s complaints. The chief justice was answering to a different brand of conservatism, the kind that cares about conserving the constitutional will of Congress, a body that — unlike the Supremes — is comprised of elected representatives.
Yes, Roberts acknowledged, some of the language in the law was flawed by “inartful drafting.” Yet, like a doctor following the bioethical motto, “First, do no harm,” Roberts showed no eagerness to add to the confusion.
Sure, the right sounded furious. Texas Sen. Ted Cruz, a Republican presidential hopeful who once in 2005 called Roberts “one of the best constitutional minds in the country,” now denounced Roberts’ majority as “robed Houdinis” who “transmogrified” Obama’s health care law to save it.
But privately many on the right had good reason to feel relieved. Republicans can still raise money and rally the Grand Old Party’s base to “repeal and replace” Obamacare without having to come up with a more appealing replacement.
As much as Republicans — including presidential hopefuls Sen. Marco Rubio of Florida and Gov. Bobby Jindal of Louisiana — have offered proposals to replace Obamacare, none has attracted a consensus of support among fellow Republicans in Congress.
Of course, Republicans could have stuck with a smart, market-driven proposal that came out of the conservative Heritage Foundation in the early 1990s. Mitt Romney as governor of Massachusetts pushed it to enactment in his state. His fellow Republicans loved it until President Barack Obama offered it to the nation. If you want congressional Republicans to hate something, just attach the president’s name to it.
Yet Obamacare, flaws and all, is still slowly but steadily gaining public support since its rocky launch. Three days before the Supreme Court’s decision, a new CBS News/ New York Times poll found 47 percent of Americans now approve of the law. Although short of a majority, that’s the highest approval for the health care law that the Times and CBS have found.
While Republicans argue about what health care system we might have, the one we have has a chance to gain its footing and continue to do good for millions of newly insured Americans, even as it tries to do better.
Email Clarence Page at cpagetribune.com.
