Analysis: Supreme Court Saved Republicans With Obamacare Decision, but Damaged Itself in the Long Run
The U.S. Supreme Court's decision to uphold the Affordable Care Act or "Obamacare" subsidies in states without their own heath insurance exchanges is a blessing in disguise for the Republican Party, but long-term the decision will cement the court's legacy as more concerned with the popularity of its decisions than the logic of its judicial reasoning.
While many of the reactions to the decision will likely be framed bimodally, in terms of winners versus losers, or Republicans versus Democrats, the reality is more complicated.
There are three ironies central to the case.
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The first irony is that the Obama administration was asking the court to rule against its own law, which it did. The intent and wording of the law was to deny subsidies to the states that did not create their own exchanges. This was done as an incentive to encourage the states to create their own exchanges.
The incentive did not work well. A number of Republican-led states did not create their own exchanges because they opposed the law and a few Democratic-led states had problems creating their own exchanges and had to use the federal exchange.
Fixing that part of the law would have required Obama to work with Congress. But with Congress now in the hands of Republicans, any fix would have been a compromise with Republicans, which could have changed the law significantly. Instead, what Obama hoped for, and received, was for the Supreme Court to rule against what Obamacare actually says, and intended to say.
The second irony is that a ruling against the Obama administration would have likely hurt the Republican Party. Such a ruling would have meant that Congress would need to pass legislation to ensure that those currently receiving health insurance subsidies in states without exchanges continue to do so. Such a fix likely would have been temporary, in the hopes that a Republican would occupy the White House in 2017 and a more comprehensive solution could pass.
But the Republican Party in Congress is currently dysfunctional. While the problem was created by an incompetent Democratic Congress, few would take comfort in relying upon an incompetent Republican Congress for a solution. As demonstrated during the recent government shutdowns, Republicans are divided and have difficulty passing legislation of significance. Wednesday night, for instance, Sen. Ted Cruz, R-Texas, said on Fox News that he would have tried to block any short-term fix to extend the subsidies.
The fight itself would have hurt the Republican Party, but, even worse, the party may not have even come up with a fix by the end of that fight, which would have left millions of Americans unable to afford the health insurance they currently have.
In fact, the Supreme Court appeared to be taking congressional dysfunction and divided government into account in its ruling. Which leads to the third irony ...
While the court's decision was in the short-term good for the Obama administration, good for the Republican Party, and good for the millions of Americans that receive subsidies through the federal exchange, it was bad for judicial decision making in the long term.
Rewriting laws is the job of Congress, not the Supreme Court. Following and responding to public opinion is the job of Congress, not the Supreme Court. Yet this Supreme Court, in now two Obamacare decisions, has demonstrated a willingness to behave like a legislative body in order to win in the court of public opinion.
In the first decision, the court claimed that Obamacare can fine individuals who do not buy health insurance because the fine is a tax. This was something Congress never intended. In the second, the court claimed that what Congress actually intended (no subsidies for the federal exchange), is no longer the law. (Both opinions were written by Chief Justice John Roberts.)
The authors of the U.S. Constitution wanted the legislative, executive and judicial authorities of government to be separated into three separate branches (Congress, the president and the courts, respectively), as a protection against tyranny, or political power in the hands of a few. The legislative authority, which makes laws, was provided to Congress, the body most in touch with voters. The judicial authority, on the other hand, was provided to judges who had some separation from voters (appointed by the president rather than elected, and provided life terms).
In Thursday's Obamacare ruling, the Supreme Court has demonstrated that it is both concerned about public opinion and unconcerned about usurping legislative authority, both of which are a betrayal of its founding purpose.
Justice Antonin Scalia was correct in his Thursday dissent when he wrote of both Obamacare cases, "The somersaults of statutory interpretation they have performed ... 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."
The third irony, then, is that while the decision will be praised by many in the short term and the court achieved its goal being thought of as the "cool kid on the block," in the long run the current court will be remembered for its poor judicial temperament and defective judicial reasoning.
