On King v. Burwell and the Survival of the Affordable Care Act

Today is my birthday – and the Supreme Court (or, at least, two-thirds of it) just gave me, most people who follow health policy, and millions of now still-insured Americans a present: King v. Burwell.

There is a lot to say about this decision, but I want to focus on three things: the strength of the conflicting substantive arguments, the possible internal Court dynamics that resulted in the majority and dissenting opinion, and a guess at some deeper meanings of the case for the future of health care in America.

On the substance, this is a case that really could have gone either way. The idea that the Court should apply the words as written, no matter how silly, has precedent in the Court’s history; so does the idea that the Court should try to interpret laws in ways that make them work as intended. The majority, at the end Chief Justice Roberts’s opinion, does recognize this conflict; the dissent, from the more textualist end of the Court, rejects the idea of a tension. The majority has it right in the sense that sometimes the Court does one thing, sometimes the other, and that both are legitimate responses to cases – both are within the culture of legal interpretation that the Court has included over the last two and quarter centuries.

I do think the Court could have legitimately gone the other way, though I think it would have been foolish and harmful, to the country and even to the conservatives who will now bemoan this outcome. I am glad they did not. I prefer judges who try, when the law – or more accurately its interpretative culture – will allow them to, to make things work in a sensible way. The dissent’s position would have upended a major government program and harmed millions of people for a technicality – a like a ticky tack penalty or foul call deciding the Superbowl or the World Cup. The Courtcould have done that, but it would have been wrong.

On the Court’s dynamics, several things are interesting. One is the dogs that did not bark – this decision, extremely important politically (though of zero importance in terms of making new doctrine), generated one majority and one dissent. No one wrote a separate concurrence, no one added additional thoughts to Justice Scalia’s dissent. My colleague Michelle Mello has expressed surprise that the majority did not discuss the “gun to the head” argument that Justices Kagan and Kennedy seemed to like during oral argument – the point that the dissent’s reading of the statute really would be coercive to states. My guess is that some of the majority justices may have been tempted to add that as a concurrence, but concluded that a single voice, united behind the Chief Justice, was the best course.

Why did Justice Kennedy vote for Obamacare in this case and against it in the earlier case? Because, at some point, Justices’ votes really are not just about Obamacare, but about the case, and the arguments, before them. The first Obamacare case really did involve making new law, setting constitutional doctrine where it had not previously been set. And it did so before millions of people had relied on the challenged provisions of the Act. This case was about a technicality. I suspect Justice Kennedy did not want to disrupt the country’s health care system based on clear drafting error by Congress – the consequences of the Court’s decisions matter more to him than to some of his colleagues. And the fact that his long Supreme Court tenure, now 27 years, will draw to a close before many more years – he turns 79 this July – may well have the reflective Kennedy thinking more about his legacy.

Why did Chief Justice Roberts vote for Obamacare? Again, like Justice Kennedy, probably mostly because he was convinced by the government’s arguments, but also, as the leader of the judiciary, because he also did not want to have the Court be seen to be upsetting a major program, and causing chaos as a result, based on a drafting error.

And make no mistake about it. In spite of his best efforts, Justice Scalia does not provide a convincing argument that this was not a drafting error. He tells no reasonable story about why Congress would have decided, on purpose, to do what his dissent says it did

Finally, what does it mean about the future of Obamacare? Well, I think it means the Supreme Court is done with it, at least with its fundamental, life or death issues. The Court might still take an ancillary issue, another case on contraceptive mandates, for example, but it has taken up a lot of time and effort, and endured a lot of political scrutiny, and upheld the law twice. The remaining challenges are weaker and I suspect the Court will have no appetite to face this again – especially as a presidential election looms. (Note that it takes four justices even to hear a case; unless the Chief Justice or Justice Kennedy can be swayed, there aren’t four justices to grant a hearing.)

But there is a presidential election looming, in less than a year and a half. The Republican party continues to hold the destruction of Obamacare as a fundamental principle. What happens if on January 20, 2017, we have a Republican President, Senate, and House of Representatives? I think this case will have made a difference in that situation, too. The focus that King v. Burwell put on the consequences of a precipitate repeal of Obamacare made it clear that such an act would be deeply disruptive – to patients, to doctors, to hospitals, to insurers, and to others. After this, I think the Republicans will not be able just to repeal Obamacare, even if they have the power. They will need to replace it. There is no return to the status quo ante. King v. Burwell, if it did nothing else, brought home that the Act has become a significant part of America’s fabric. Politically, I think it can be replaced, but not just destroyed.

Hank Greely

Director, Center for Law and the Biosciences