Obamacare Is Alive and Well

Supporters of the Affordable Care Act exult after the Supreme Court upheld the law’s insurance subsidies nationally. Photo courtesy of Flickr contributor Ted Eytan

Abigail Moncrieff saw it coming.

Three months before the Supreme Court yesterday upheld the Affordable Care Act’s health insurance subsidies nationwide, Moncrieff, a School of Law associate professor of law, penned an article for The New Republic titled “Why the Supreme Court Will Rule in Favor of Obamacare.”

She also coauthored an amicus curiae (friend of the court) brief in the case, King v. Burwell, arguing against the case’s plaintiffs.

The Affordable Care Act (ACA) requires Americans to buy health insurance and authorizes states to run online marketplaces, or exchanges. In the three dozen states that refused to create exchanges, the federal government runs one. The law provides income-based subsidies to Americans who can’t afford insurance. The plaintiffs in the case—four Virginians backed by a conservative advocacy group—argued that the language of the ACA, which refers to exchanges “established by the state,” did not permit subsidies to residents of states with federally run exchanges. Had the court agreed, subsidies to about 7.5 million people would have been imperiled. 

The justices’ 6-3 decision is the second time in three years they’ve visited the topic and follows numerous efforts by congressional Republicans to repeal or weaken Obamacare. Moncrieff parsed the decision and its ramifications for BU Today.

BU Today: Why did you expect to court to rule for the Obama administration?

Moncrieff: That’s a complicated question. In 2012, the plaintiffs were arguing that a statutory formula for calculating the subsidy amounts also served as a limitation on subsidy eligibility, making a citizen’s eligibility for subsidies contingent on whether the citizen’s state government had chosen to establish its own exchange. I was confident that no court would interpret an arcane formula as an eligibility provision, particularly given that the statute contained a different provision that much more clearly defined eligibility.

The plaintiffs’ lawyer, however, came up with some tempting fictions about the statute that rendered his interpretation plausible, and as the case moved forward through the lower courts, I got more and more nervous—and also more and more frustrated. That’s why I submitted my amicus brief to the court. During oral arguments on the case in March, Justice Anthony Kennedy drew from my brief to support the government’s side, and I once again started to feel confident that the court would vote for the more sensible interpretation of the statute.

I was pleasantly surprised that six justices shared my 2012 gut reaction that the statute as a whole simply doesn’t support the plaintiffs’ interpretation. As Chief Justice John Roberts argued in his opinion, the provision on which the plaintiffs relied is not an eligibility provision; it is a “sub-sub-sub section of the tax code” that should not be understood to limit subsidy eligibility in any state.

What do you think of the court’s reasoning? Were the justices true to their stated constitutional philosophies?

They were true to their statutory interpretation philosophies. Justice Antonin Scalia’s dissent is particularly consistent with his interpretive philosophy. The justices did not make any constitutional arguments, though.

Were you surprised by the somewhat lopsided support for the law?

No. After oral arguments, I predicted a 6-3 holding for the government. 

What fallout do you expect from the ruling—that is, is this the end of political and legal challenges to Obamacare? 

No. There will be challenges forever, just as there are continuous challenges to Social Security and Medicare despite their entrenchment. 

Does the court’s reasoning suggest how it might rule on other important issues beyond Obamacare?

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What will be the on-the-ground effect of the court’s ruling in the lives of Americans?

Happily, the on-the-ground effect will be maintenance of the status quo, which is good news given that the statute is working well. The opposite opinion would have had profound and highly disruptive effects. This opinion should cause no change relative to the world of yesterday.