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A Loss of Words


The following excerpt was originally published in the Fall 2015 issue of The Arch Conservative. Republished with permission.

As a general rule, the Supreme Court decides to release what it considers its most significant decisions at the very end of its term, which runs from October through June. In recent years, the Court has released decisions dealing with campaign finance, voting rights, and religious liberty in the final days of June.

This year, the Supreme Court decision striking down state statutes defining marriage as between a man and woman and legalizing gay marriage nationwide was released on the final Friday of June. It received by far the most attention of the term. Although less notice was paid to the two decisions immediately preceding and following the gay marriage case, these cases will arguably have a more substantial effect on legal precedent in the years to come. An attentive political observer may recognize King v. Burwell, another case concerning Obamacare. At issue was a statute in the Affordable Care Act which stipulates that certain tax credits and financial support for purchasing health coverage are available to citizens who purchased insurance from “an exchange established by the state.”

Following the decision of 27 states to not establish their own exchanges, the Obama administration decided to set up an interstate health insurance exchange run by the federal government, which would offer insurance to the people in those states. The plaintiffs in the case charged that the federal government could not require them to purchase health insurance coverage, as required under the individual mandate of the Affordable Care Act, as the tax credits they needed to purchase the insurance were not available in their state, which didn’t set up an exchange.

The statute in question clearly employs the phrase “established by the state”, while the administration interpreted the law to include the federal government as well. Under a standard reading of the statute, it seemed that the plaintiffs had a strong argument against the administration.

Before the hearing, it seemed possible that the Supreme Court would strike down the administration’s interpretation of the statute, terminating a significant feature of Obamacare. Alas, it was not to be. Chief Justice John Roberts, writing a decision that would uphold a significant feature of Obamacare for the second time in four years, accepted the administration’s interpretation of the law. The Chief Justice, writing for a 6-3 majority, acknowledged that those challenging the administration had “strong” reasoning, and their interpretation was “the most natural reading of the pertinent statutory phrase.”

Nevertheless, he and the five affirming justices decided that the phrase “established by the state” couldn’t possibly be interpreted strictly because it would “likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

By this mechanism, the Chief Justice deliberately translated the statuory phrase “established by the state” into “established by the state or federal government.” Although the law says the former, with the help of the Supreme Court, it now means the latter.

Read the rest over at The Arch Conservative.


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