How do justices weigh loss of health insurance for millions?

AP Photo/Andrew Harnik

AP Photo/Andrew Harnik

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 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?”

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