Big news, as reported by my Washington Examiner colleague Philip Klein: The Supreme Court has granted certiorari in King v. Burwell, in which the Fourth Circuit Court of Appeals upheld the Obama administration decision to order payment of Obamacare subsidies in the 36 states which declined to set up their own healthcare exchanges. This despite the fact (acknowledged by Judge Roger Gregory, author of the Fourth Circuit opinion) that the text of the legislation does not include words authorizing those subsidies.
An opposite result was reached by the District of Columbia Circuit Court of Appeals in Halbig v. Burwell, in which Judge Thomas Griffith, writing for the majority, also noted that the words of the legislation did not authorize these subsidies and held — correctly, in my view — that the subsidies were not authorized by law and could not be paid. Senate Majority Leader Harry Reid got Democrats to change Senate rules to allow four new judges to be confirmed on the D.C. Circuit, and Reid chortled with glee when the newly-enlarged D.C. Circuit voted to hear the case en banc, leaving its decision non-dispositive until the case can be re-argued and re-heard. This vulgar political move had Democrats cheering. The Supreme Court, or at least the four or more members who voted to hear the case, seems to have had a different response.
The Supreme Court is expected to reach a decision by the end of June 2015, at which point Reid will be Senate Minority Leader and can no longer block measures from the floor and wave Democratic judicial nominees into office with a wave of his hand. If the Supreme Court follows the logic — the compelling logic, it seems to me — that a law can only be interpreted to say what it says, then the Obama administration will no longer be allowed to pay subsidies in the 36 affected states; it’s unclear whether the Court will require the government to claw back subsidies already paid, and there’s an equity argument that citizens who innocently accepted money the government said was lawfully paid should not be required to pay it back.
Note that the Supreme Court is not being asked to rule the law unconstitutional. It is just being asked to interpret a statute — in this case, to say that the statute says what it says. Supreme Court justices have generally been more willing to overturn Executive Branch interpretations of statutes than to rule their acts unconstitutional. After all, Congress can, with the approval of the president or over his veto, can rewrite statutes and in fact does it all the time (well, not so often over the last four years, when Reid kept many bills and amendments with majority support off the Senate floor). It would be easy to rewrite the Obamacare statute to make it say what Democrats say they intended to say but somehow didn’t quite do so. Just change a few words. But Republicans will have majorities in both houses in 2015. If there is demand for making the subsidies available in the 36 states where they would be barred by the Halbig ruling, Republicans might demand something in return. Like a major rewriting of Obamacare.
This could be a nightmare for the Obama administration. Democrats will not want to be blamed for withdrawing subsidies from people in 36 states—particularly since it will be clear that they did this by what can be described as either incompetence or political chicanery. They may be forced into accepting, reluctantly, major changes in Obamacare. Republicans cannot force repeal. But if the Supreme Court early next summer follows standard statutory interpretation, Republicans can get a good start on replace.
