SCOTUS Takes Aim at Obamacare…Again

© Josh Sager – November 2014

Honestly, as a progressive, I thought that the 2014 election results were truly the bottom of the political barrel for a good long time—the extremists elected into the Congress will cause massive problems and may very well manage to push through deregulation, tax cuts for the wealthy, the Keystone XL pipeline, damaging trade deals (TPP and TATP) and a whole host of other conservative/corporatist priorities. Unfortunately, the Supreme Court has blown a hole through the bottom of the barrel and may have just publically announced that it plans to kill ObamaCare.


On Friday last week, the Supreme Court announced that it will hear the King v. Burwell challenge to the Affordable Care Act. I covered this case several months ago but, at the time, most legal experts thought that it was too vacuous and crazy to even be heard in front of the Supreme Court.

My favorite characterization of the validity of this legal challenge comes from Jonathan Chait of NY Magazine: “King v. Burwell is not so much a radical legal doctrine as it is a Monty Python-esque exercise in extreme tendentiousness.”

The crux of the King v. Burwell challenge to the Affordable Care Act is a small typo in one line of the law. When talking about the authorization to release federal subsidies to individuals buying insurance on the exchanges, the law’s text indicates that people who buy through a “state exchange” are eligible for subsidies in order to assist them in buying health insurance. The term “state” is ambiguous and could either refer to specific “state” exchanges (ex. Kentucky’s KYNECT) or the “state” exchanges set up by the United States nation state (using state as a generic term, as it is with the “State Department”).

Such typos happen on a regular basis and it is common practice for the government to simply use a reasonable interpretation of the law that bypasses the typo or for the legislature to correct their mistake using a clean and uncontroversial bill. Unfortunately, the right wing’s desire to kill President Obama’s signature legislative achievement knows no bounds and they have seized on this typo to get a second judicial chance to destroy Obamacare.

The Supreme Court has very limited time and only accepts cases that are important (ex. issues of civil rights) or issues where there are irreconcilable conflicts between federal court decisions that have significant consequences. The simple fact that they are wasting their time on this case is extremely ominous, as it suggests that they are planning on putting another bomb into the law.

Our current Supreme Court has a history of using indirect means to achieve conservative results—here are two such examples:

  • In 2010, they opened up the floodgates to corporate corruption in the Citizens United Case. This increase in outside money decreased the power of the parties, prompting the SCOTUS to “fix” this imbalance in 2013 with their McCutcheon decision removing aggregate donation limits.
  • In their 2013 Shelby County decision, the SCOTUS eviscerated the Voting Rights Act pre-clearance provision by invalidating the method by which localities were selected for the requirement (localities with a history of discrimination). Because they know that that the Congress is dysfunctional and wouldn’t pass new selection guidelines, this let them eliminate the eminently-constitutional pre-clearance provision while avoiding most of the responsibility.

While we won’t receive a decision on this case until June 2015, I predict that the Supreme Court will decide—by a 5-4 margin—that the text of the law limits federal healthcare subsidies to exchanges set up by individual states.


Only 14 states have set up their own ACA exchanges, thus this decision will eliminate the subsidies for residents living in the remaining 36 states. This removal of subsidies, combined with the refusal of 26 states to expand their Medicare eligibility (made possible by the last SCOTUS decision on the ACA), will make it simply impossible for millions of low-income Americans to access affordable health insurance.

In effect, the Supreme Court will have gutted the parts of the law that serve the most vulnerable and very well may destabilize the law to the point where it collapses under its own weight. If people cannot afford healthcare yet are mandated to buy it, this simply compounds their trouble and defeats the purpose of healthcare reform.

6 thoughts on “SCOTUS Takes Aim at Obamacare…Again

  1. We will see which result is created by the Robert’s Court. Justice ( I write that word tongue-in-cheek) Roberts was not the individual responsible for accepting this case. It was Justice Kennedy, whom in the past (long ago) was frequently the swing vote, and was instrumental in promoting more moderate opinions than now.
    If John Roberts doesn’t want the legacy of stripping millions of Americans of their present health care insurance to follow him, he’ll most likely find a way to prevent it. if on the other hand, he is at the point of believing he is God, it will be a disaster of epic proportions, and may just begin the populist uprising for single payer health care reform.


    • The true danger of this case is that it gives Roberts a fig leaf in the form of saying that “he is only following the letter of the law and that the legislature just needs to make a small fix.” This allows him to offload criticism by hiding behind literalism and dumping the law back into the legislature (as he did with the VRA). As I mention in the article, he has hidden behind these before to chip away at laws, and, it was he who decided that the ACA allowed states to opt out of the Mediacaid expansion Half the court wanted to destroy the law while half wanted to save it and he broke the tie).


      • Roberts’ fig leaves won’t fool those affected by his court’s decision in this case. He might have been able to escape full blown attacks with pitchforks and torches ( which he deserved) after the VRA was gutted, since the majority of the law was left to hide behind, and, the work of individual states voter suppression tactics, made it appear the court was removed from the actions – but when those who have just started being able to buy a lifeline to health care cannot get it anymore, and start asking why, I doubt the Robert’s Court will escape the blame. This is specific, and it is getting wider publicity. We will see.


  2. I have long ago stopped trying to figure out how the SCOTUS will rule on anything. They need to find some document to use as a basis for their rulings (sarcasm). Frankly, I am of two minds on this issue. If the SCOTUS decides to take an activist stand and gut the law, it finally puts to the sword the false idea that they are “strict constructionists”. But let us not forget that the “conservative/state’s rights” court in 2000 told the people of Florida that they could not count all their votes. They overturned the Florida Supreme Court and Florida Constitution and directly intervened in the election. So, no matter what they say it has become impossible to predict what they will do.
    Gutting the law may be a good long term step for the liberals. Perhaps when working people start getting their insurance rates raised or are dropped by their insurance companies they will remember that the good old days weren’t so good. Maybe they will figure out who to vote for.
    On the other hand, it will create great hardship for the poorest of the working poor. As a bleeding-heart liberal I hate to see that.
    A reminder of why the POTUS is so important. Right now we are stuck with 5 justices appointed by the GOP presidents, including 2 from the Reagan years. Term limits, anyone?


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s