The Supreme Court issued its much-awaited decision Thursday in King v. Burwell, a case that threatened to stop Obamacare in its tracks.
Even the most charitable interpretation of what the court did is to say it overstepped its authority and re-wrote the law to close a gaping hole created by sloppy drafting. A less generous interpretation is that the court decided to rescue the law by ignoring an ill-conceived clause included deliberately and explicitly to put pressure on states to create healthcare exchanges.
Roberts chose to construe the phrase “an exchange established by the state” to include Obamacare exchanges not established by states. As a consequence, a series of mandates will still be imposed on consumers and employers in states that didn’t establish their own exchanges. A flow of federal subsidies to insurance companies will continue as well.
But if it is a matter of congressional intent, then the relevant fact is that Congress intended to pass a completely different law. It just proved politically unable to do so after voters intervened. The court has now overruled those voters.
Democratic senators never considered for even a moment that they would lose the ability to make changes to the Obamacare bill after passing it. But they did lose it when Republican Scott Brown was elected to Ted Kennedy’s old Senate seat in the Massachusetts special election of January 2010.
With Brown’s election, Democrats lost their filibuster-proof majority. Because the voters had had their say, Democrats had no choice but to back their rough version of Obamacare through the U.S. House, still containing the language at issue in this case, among other flaws they had planned to iron out through the legislative process.
Thus, with this decision, the Supreme Court has done an end run around Brown’s election — a reflection of the popular will at the time — and its very important effect on the legislation.
Still, this was a limited bad decision. Until quite recently, only a few conservatives expected the case to become Obamacare’s undoing. Disappointment over its failure to do so is misplaced; it would be more accurate to say that Obamacare dodged an unexpected bullet.
The ruling does not mean Obamacare is here to stay but, rather, that there will be no judicial decision to get rid of it, which is what everyone thought already after the 5-4 decision in the 2012 Sebelius case.
Obamacare was made possible by two consecutive elections in which Democrats went from powerlessness to dominance in Washington. The health care law’s opponents must by the same token win access to more of the levers of power if they are seriously committed to setting aside Obamacare’s premises and provisions and starting over with market-based reforms to the old, dysfunctional system.
