Whatever anyone thinks about the Supreme Court’s unexpectedly lopsided decision supporting the subsidies in the Affordable Care Act, two facts are inescapable:
• The law is here to stay. Despite more than 50 votes attempting to repeal or otherwise undermine the law, even many Republicans did not want the court to scuttle it, given that many of the beneficiaries of the subsidies live in red states.
• It is time now to make the law better than it is. Congress should focus on improving the ACA in ways that help both its intended beneficiaries and taxpayers.
Chief Justice John G. Roberts Jr. supported the law despite surely inadvertent language whose meaning appeared to invalidate government subsidies in states that did not set up their own exchanges.
To accomplish that, the court’s 6-3 majority had to look past the apparent meaning of the law’s wording and take into account both the intent of the law and the chaotic consequences of taking those words at face value. In that, it was a contortionists’ achievement, but one that drew the support of two of the court’s conservatives, Roberts and Justice Anthony Kennedy.
And even though the court’s three most conservative justices dissented, Justice Antonin Scalia went so far, in an otherwise scathing opinion, as to acknowledge that “sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections.” Context matters, he said. He differed from the majority, however, in his belief that rather than seeking to understand the terms of the law, it was finding an “excuse” to rewrite it.
Regardless, the Affordable Care Act has been ratified by the court and it seems likely that the challenges to its constitutionality are at an end. Republican presidential candidates still vow to kill Obamacare, but, with millions of people benefiting from its provisions, this law is now here to stay. Conservative leaders should rather seek to reshape it, as they do with Medicare and Social Security.
All in all, Obamacare is for the good of individuals enrolled and for the country. Those previously uninsured were mainly the working poor, people with jobs that did not provide health insurance or pay too low to buy their own policies. That put their health and their solvency at risk. The Affordable Care Act makes for a dramatic improvement, but it’s hardly perfect.
Many Americans remain uninsured, and while the mechanisms for funding the law are theoretically sound, the ultimate cost is as yet unknown. And the ACA still leaves employers as the default insurance provider for many working Americans. American employers find themselves saddled with an increasingly expensive cost of doing business.
Worse still, the health care system as a whole requires Americans to pay a greater share of their income for health care than any other developed country, and for results that are mainly average. It’s an intolerable set of circumstances that, if we are lucky, the ACA will help to improve. But that will require Congress to strengthen the program in a way that continues to lower the costs of health care while providing coverage that is not simply broader, but universal.
The Supreme Court’s ruling on Thursday gives Congress the opportunity to do that. It should resolve to meet the challenge.