“We should start calling this law SCOTUScare,” Supreme Court Justice Antonin Scalia, using the acronym for the court, declared Thursday as a majority of his colleagues once more rewrote the Affordable Care Act (ACA) to save it.
In the case of King v. Burwell, the court ruled 6-3 that the plain language of the ACA means something entirely different. Although the law specifically states that refundable tax credits for the purchase of insurance are available only when coverage is bought on “an exchange established by the state,” the majority — Chief Justice John Roberts along with Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — found this phrase “ambiguous.”
“If the statutory language is plain, we must enforce it according to its terms,” Roberts wrote for the majority. Indeed, he observed, “petitioners’ arguments about the plain meaning … are strong.” But Roberts, who also helped rescue ObamaCare in 2012 by recasting its penalties as taxes and changing the terms of its Medicaid expansion, found that “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 phrase ‘an exchange established by the state’ … may be limited in its reach to state exchanges,” Roberts argued. “But it is also possible that the phrase refers to all exchanges — both state and federal — at least for purposes of tax credits.”
In truth, the language of the law is unambiguous. It quite clearly states that the tax credits — which, by virtue of being refundable, are actually subsidies — are available only on state exchanges, and with good reason. “The ACA’s legislative history,” noted columnist George Will, “demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.” ACA architect Jonathan Gruber, too, was under this impression, telling an audience in 2012, “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.”