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| FILE - In this March 4, 2015 file photo, demonstrators chant during health care rally outside the Supreme Court in Washington. The Supreme Court could wipe away health insurance for millions of Americans when it resolves the latest high court fight over President Barack Obama's health overhaul. But would the court take away a benefit from so many people, and should the justices even consider the consequences? |
WASHINGTON
(AP) -- The Supreme Court could wipe away health insurance for millions
of Americans when it resolves the latest fight over President Barack
Obama's health overhaul. But would the court take away a benefit from so
many people? Should the justices even consider such consequences?
By
month's end, the court is expected to decide a challenge to the way
subsidies, in the form of tax credits, are given to people who get their
insurance through the Affordable Care Act. The legal issue is whether
Congress authorized payments regardless of where people live, or only to
residents of states that established their own insurance exchanges.
The
distinction is potentially momentous, since more than two-thirds of the
states did not set up their own exchanges. In those states, people rely
on the federal healthcare.gov site to sign up for insurance. The
financial benefits are substantial, covering nearly three-fourths of
insurance premiums on average.
If the court
rules that the subsidies can't be given to people who enrolled on the
federal site, 7 million to 9 million Americans would quickly lose their
insurance, said Nicholas Bagley, a health law expert at the University
of Michigan and a supporter of the law known as "Obamacare."
"The consequences of a government defeat here are so extraordinary and sweeping," he said.
Since
the New Deal, the Supreme Court has almost always upheld major new
government programs and legislation as allowable under the Constitution.
That was the case with Social Security in the 1930s, the civil rights
legislation of the 1960s and, most recently, the health care law in
2012.
"After Social Security gets upheld in
1937 against various constitutional challenges, it then becomes an issue
for the voters, but not a second-round judicial question for the
court," said John Q. Barrett, a law professor at St. John's University
in New York.
But the health law is different.
It remains a bitter partisan fight, continuing to play out in the courts
after efforts to replace Obama in the White House and repeal the law in
Congress failed.
The current dispute turns
not on some great constitutional question but a matter of statutory
interpretation - or what the words of the law mean. This case comes down
to the meaning of four words - "established by the state" - in a law of
more than 900 pages.
One school of thought
holds that the court should look only at what Congress actually wrote
into the law, not what it might have intended.
"When
the court is interpreting a text like it's doing in this case, then it
really is not in the business of looking at consequences," said Ronald
Cass, the former dean of the Boston University law school. "If you have a
result that seems to be a bad one, that's for the political branches to
say, not for the court to say."
The idea that
Congress never would have created a system that was essentially
designed to fail, by making health insurance unaffordable to so many
people the law presumably was intended to help, is irrelevant, Cass
said.
On the court itself, Justice Antonin
Scalia is the most voluble proponent of the view that it's not his job
to correct Congress' bad work. "Garbage in, garbage out," he has said.
Justice
Stephen Breyer, on the other hand, has said Scalia's approach is too
limiting because a law's words sometimes are not clear enough to resolve
a case, especially when read in isolation. Context matters, and the
real-world consequences of a law are part of that context, Breyer has
said.
Another factor that may be at work is
the effect a decision could have on the court's reputation, said Thomas
Keck, a political science professor at Syracuse University.
That
kind of institutional concern seemed to affect Chief Justice John
Roberts' decision to cast the deciding vote to uphold the health law in
2012, Keck said. Had that case gone the other way, it would have "pulled
the court even further into political conflict," he said. In that
scenario, five Republican-appointed justices would have struck down the
Democratic president's signature domestic achievement during his
re-election campaign.
The unrelenting lawsuits
from Republican opponents should put the court on notice that its
reputation could be at stake again in a political fight, Keck said.
No
one knows how these considerations are weighing on the justices in the
back-and-forth of majority and dissenting opinions now making their way
around the courthouse. But there are few comparable examples in recent
history where the court has taken away a benefit from so many people.
Fifteen
years ago, the Supreme Court confronted a case involving what Justice
Sandra Day O'Connor called "perhaps the single most significant threat
to public health in the United States."
The
issue was whether the Food and Drug Administration had the authority to
regulate cigarettes as a means to reduce tobacco use among children, as
the Clinton administration asserted in regulations it issued in the
mid-1990s.
Tobacco companies said the
regulations exceeded the FDA's power. The court divided sharply, 5 to 4,
and O'Connor wrote the majority opinion agreeing with the companies.
Despite the seriousness of the problem, she wrote, Congress never
granted the FDA the power the administration claimed.
Nine years and two presidents later, Congress gave FDA the explicit authority the court said was missing in 2000.
The analogy is imprecise, but the case and its consequences pose similar questions, Bagley said.
"Do
you draw from that story that the democratic process worked," Bagley
asked, "or that we could have saved a lot of lives in the meantime if
the court had allowed the rule to go into effect?"
