An Opponent's View On Supreme Court's Health Care Ruling

Jun 25, 2015
Originally published on June 25, 2015 12:16 pm
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DAVID GREENE, HOST:

News this morning - the Supreme Court has upheld a key provision of the Afforable Care Act, also known as Obamacare. This ruling lets residents in roughly 36 states continue to receive subsidies from the federal government for health insurance. Conservatives have been working against Obamacare now for about five years. Michael Cannon is director of health policy studies for the libertarian Cato Institute and joins us on the line. Michael, good morning to you.

MICHAEL CANNON: Good morning, David. How are you?

GREENE: I'm well. Thank you for asking. Can you just remind us, if you can, the argument that you were presenting here that the court has ultimately not agreed with? I mean, why do you think subsidies for health insurance in states that use the federal exchange are not legal?

CANNON: Well, like the way the Affordable Care Act offers - and Medicaid has always offered subsidies to states that adopt a compliant Medicaid program, it offered subsidies to people who enrolled in health insurance exchanges, but only if the exchange was established by the state - not if it was established by the federal government. In other words, if states do what Congress wants it to do, then they get subsidies. If they don't - no subsidies. That's how Congress encourages states to adopt federal programs. And the law here was quite clear. It said that those subsidies are available through an exchange established by the state. But what happened here today was the Supreme Court allowed the administration to intimidate it into saying that the secretary of Health and Human Services is a state, so what - because the court said that an exchange established by the secretary of Health and Human Services is, quote, "established by the state..."

GREENE: Well, Michael, can I - let me...

CANNON: What I'm wondering is, does the secretary of Health and Human Services now get her own member of the House of Representatives and two senators and three votes in the Electoral College?

GREENE: Well, let me just ask you - I mean, you're suggesting that the administration intimidated the court. I mean, the Chief Justice John Roberts wrote an opinion that seemed to suggest that they view, you know, the idea of providing health subsidies to people in all 50 states - that even if this was a law that, as the court said, might've been sloppily written, that the intent of the law was to provide these subsidies for people in all 50 states. Isn't that the argument the court's making?

CANNON: Well, what the court basically said was that if the challengers are right, that this is a very bad law. So they said therefore the challengers must not be right. They discounted the possibility that actually maybe this is a very bad law. The fact that that's true, that if challengers are right that this is a bad law, doesn't mean that the challengers are wrong. It really is a bad law that the Supreme Court just rewrote again to protect the Affordable Care Act from - for democratic accountability.

GREENE: Again, I guess, explain why rewriting is not exaggerating what the court did. I mean, there were - there was just a sort of a technicality that they were looking at here and the court basically, you know, has argued that the intent of the law was these subsidies. You're making a case that the court has rewritten a law here. Explain that for us.

CANNON: Well, there's no evidence to support the chief justice's claim that Congress intended to offer these subsidies in federal exchanges. There's none. If there were any he would've offered it. He looks for contextual clues throughout the statute, but the language of the statute - the only language of the statute that speaks directly to the question presented in this case is quite clear. It says that those subsidies are available through an exchange established by the state. And he just blew right past the clear and unambiguous meaning of those words, and Congress even reinforced that meeting elsewhere in the statute. But the real - and, I mean, we're only talking about half of the problem here when we talk about the subsidies. Those subsidies, which are - which will now continue to flow to six-and-a-half million people in healthcare.gov states trigger penalties against 70 million people in those states. So the - and the way that works is those penalties trigger - or those subsidies trigger penalties under the employer mandate and the ACA's individual mandate. So there are 70 million people whom the administration is now going to continue to tax without any congressional authorization because the Supreme Court just rewrote the Affordable Care Act again.

GREENE: Well, Michael Cannon, let me ask you to step back, if you can. This is - you know, this has been a long fight for you and others who have raised a lot of questions about this law. Are there more ways now to mount legal challenges to Obamacare or is this sort of the final setback for people who have been fighting against this law?

CANNON: Well, if this law is going to continue, it's already thrown health - people out of their health insurance - sick Americans out of their health insurance. Once it was threatening to do so again. That's why the court rewrote it this time, but it's going to continue to do that as long as it's on the books, and it's still an unpopular law. You still got one political party that's committed to repealing it. So I don't think this - the fight to repeal this law is over by any stretch of the imagination and there are other legal challenges that are - there's one other legal challenge making its way through the courts. It's very similar to this one. And I don't think that we'll get health care - the health care reforms that make health care better and more affordable and more secure - until this law is off the books.

GREENE: Michael Cannon, stay with us if you can. I'm going to bring in another voice here. It's NPR's national political correspondent Mara Liasson, who's here in the studio. And, Mara, you were on the air a little earlier talking about some of the politics of this and whether, as Republicans go forward now, whether this sort of secretly might be something that they are applauding from a political sense. Explain it for us.

MARA LIASSON, BYLINE: Well, yeah, and I'm interested in what Michael thinks on this too, not that they're secretly applauding, but that they're secretly relieved because if the court had ruled in favor of the plaintiffs, the Republican Congress would've inherited the mess and polls show majorities of people wanted something done to fix the situation if the subsidies disappeared. And Republicans hadn't been able to come to a consensus on what a replacement would be for Obamacare. So I'm wondering, just on the politics of this, Michael, do you think that Republicans in some way dodged a bullet here?

CANNON: Well, unfortunately, we'll never know because we - we don't really know how - we'll never know how the public would've reacted to the Supreme Court saying that those subsidies are unlawful, the administration broke the law and those subsidies and those taxes on 70 million Americans have to stop. But my sense was - actually is consistent with something that you wrote, Mara, a few months ago after oral arguments where you said this could be a big problem for Democrats because what would've happened was people would have gotten their Obamacare insurance bills in the mail in August or September and they would've seen the full cost of their premiums because that's all - that's - Congress didn't authorize subsidies in federal exchanges, so those six-and-a-half million people would see the full cost of their premiums. And they wouldn't go through this complex - a lot of complex research to see exactly how this happened. They would just say, wow, Obamacare doesn't work, and so my sense was that it was going to be a liability for the Democrats, but, as I said, we'll never know.

LIASSON: Right, and it definitely would've been a liability for the Democrats. I'm just saying that this ruling in some ways takes Republicans off the hook. I'm just curious, when you say there wasn't...

GREENE: No, sadly we're going to have to stop the conversation there, but there's much more to come as we cover the Supreme Court decision this morning. Michael Cannon is director of health policy studies for the libertarian Cato Institute. Michael, thanks very much for joining us.

CANNON: Any time.

GREENE: And we're also joined by NPR's national political correspondent Mara Liasson. We'll be hearing much more from you Mara. Thank you.

LIASSON: Thank you.

GREENE: Supreme Court news - you heard it this morning - a decision on the Affordable Care Act. Transcript provided by NPR, Copyright NPR.