The U.S. Supreme Court averted costly consequences Thursday for millions of Americans receiving federal subsidies for insurance under the Patient Protection and Affordable Care Act. But to do so, it had to overlook the law’s limit on those subsidies to insurance plans “established by the State.”
In King v. Burwell, the plaintiff cited that language to challenge the federal subsidies for residents of the 34 states, including South Carolina, that don’t have insurance exchanges.
That presented the high court with this dilemma: a) honor that wording and scrap the subsidies, or b) prevent the negative, wide-ranging side-effects of removing the subsidies.
Chief Justice John Roberts offered this basis for the 6-3 ruling in the majority opinion: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
In fairness to the justices who voted in the majority, that bewildering behemoth of a law does contradict itself here and there. And at least Thursday’s ruling removes worries about the upheaval that eliminating the subsidies would have caused.
Still, the decision also raised troubling questions, including:
Should Chief Justice Roberts’ “if at all possible” premise about following general legislative intent in this case extend to ignoring any other law’s specific wording?
And if the judicial branch grants the executive branch leeway to pick and choose which words matter in which laws, what’s the point of lawmakers debating the language of a law?
This is the second time Chief Justice Roberts has seriously stretched semantics in the ACA’s favor. In 2012, he in effect redefined what is and isn’t a tax under that law to secure a 5-4 ruling upholding it, though the court did strike down the ACA’s overreaching mandate that all states had to expand their Medicaid programs.
Justice Antonin Scalia, referencing that 2012 decision in his scathing dissent of Thursday’s ruling, wrote: “We should start calling this law SCOTUScare.”
Meanwhile, beyond clashing judicial interpretations lies this bottom-line financial concern: The “affordable” billing of the law remains highly dubious.
Earlier this month, the inspector general of the U.S. Department of Health and Human Services released an audit reporting that “internal controls did not effectively ensure the accuracy of nearly $2.8 billion in aggregate financial assistance payments made to insurance companies under the Affordable Care Act during the first four months that these payments were made.”
That failure should come as no surprise after nearly half a century of rampant waste in Medicare funding. Another scary ACA symptom, as chronicled late last month by The Hill, a newspaper covering Washington politics and government:
“Five years after the passage of Obamacare, there is one expense that’s still causing sticker shock across the health-care industry: overhead costs. The administrative costs for health-care plans are expected to explode by more than a quarter of a trillion dollars over the next decade, according to a new study published by the Health Affairs blog.”
Yes, those federal subsidies for Americans in states without ACA insurance plans will remain in effect because the Supreme Court decided to ignore four words.
But that doesn’t mean the rest of us should ignore the fact that this law’s misnomer of a title doesn’t make it “affordable.”