By now our readers have learned about the Supreme Court 6-3 decision to side with the Appellate Court decision in King v. Burwell. Most of us breathed a bit easier on Thursday, if at least for the end of uncertainty.
“[The decision] sends a strong signal to people who politically oppose the law that the court understands the law and is not going to tolerate more of this frivolous litigation that tries to destroy the statute by distorting it,” said Abbe Gluck, Yale Law School professor and ACA expert, in an interview Thursday with the Washington Post.
The blanket media coverage encouraged us to read (skim, actually) the majority opinion written by Justice Roberts and the always entertaining Justice Scalia. The following passages, we believe, best represent their positions:
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.
Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved…Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
Payers and providers should be pleased with the resulting decision, as this means, at the very least, they can keep the patients added through subsidies on the exchanges. Shares in Community Health Systems rose 19 percent and Tenet climbed 21 percent on the news. Aetna, Cigna and UnitedHealthcare shares all closed Thursday with substantial gains.
With the matter settled, at least as far as the Supreme Court is concerned, Congress turned to the power of the purse: on Friday the Senate Appropriations Committee set forth a bill that will cut $3.6 billion in funding for the Department of Health and Human Services, Department of Labor and the Department of Education. Those cuts include a $251 million in funding for the Centers for Disease Control and Prevention.
The bill also blocks funding for discretionary spending for state-based exchanges, blocks funding for the ACA’s Risk Corridor program (a temporary premium stabilization measure) and blocks budget increases for several health and education programs.