Happy about the Supreme Court’s ACA decision? Thank a law professor

By Rachel Sachs

[Originally published on The Conversation].

The core of the Affordable Care Act (ACA) has now survived its second trip to the Supreme Court.

Chief Justice John Roberts wrote for the majority in King v Burwell, holding that the federal government may provide subsidies for citizens to purchase health insurance on exchanges that were established by the federal government, rather than by their own state.

A ruling for the challengers (the “King” in King v Burwell) would not only have stopped the flow of subsidies to 6.4 million people currently receiving them, but it would also have disrupted the functioning of the individual insurance markets in the 34 states that have not established their own exchanges.

Last week, I wrote about whether the justices’ understanding of the ACA had improved since its last trip to the Supreme Court in 2012, in NFIB v Sebelius.

And it looks like it has. Three years ago, it was clear from both the oral argument and opinions that the justices did not fully appreciate the health policy consequences of their ruling.

But in the oral argument in King v Burwell, the justices displayed a much more sophisticated understanding of the law. And, happily, that understanding is reflected in Chief Justice Roberts’ majority opinion – in part thanks to law professors.

The court has a much stronger understanding of the ACA

Not only is his opinion clear and persuasive, it also displays an appreciation of the health policy history behind the ACA and the relationships between its many moving parts.

The first five pages of the majority’s opinion explain simply and succinctly that the ACA has three interrelated and interdependent pieces – the individual mandate, the subsidies, and the guaranteed issue and community rating requirements. The guaranteed issue rule requires insurers to accept anyone, even those with preexisting conditions. The community rating requirement prevents insurers from charging sicker or older individuals premiums that are many times higher than what healthy individuals are charged.

These components depend on each other to ensure the stability of the act. You can’t remove one of these pieces without threatening the entire law. You need all three components to ensure a stable insurance marketplace.

And it is this understanding that underpins the majority opinion in King v Burwell. The court went so far as to detail the experiences of several states that had adopted only the guaranteed issue and community rating requirements but not the subsidies or individual mandate, explaining that they experienced economic “death spirals” in their insurance markets as a result. The opinion even held out Massachusetts as a poster child for a healthy insurance market, because in 2006 the state added an individual mandate and a tax subsidy to its already-enacted guaranteed issue and community rating requirements.

But Chief Justice Roberts didn’t stop there. His opinion details not only the way in which the main portions of the ACA interact broadly, but also the way in which interpretations of just four words of the act (an exchange “established by the state”) can reverberate throughout the entire law.

He emphasized and reiterated the importance of reading those four words of the statute in the context of the law as a whole. In his opinion, Roberts follows the ACA’s myriad definitions, cross-references and subsections to their logical conclusion.

And that diligent effort reveals something interesting about the challengers’ interpretation of the ACA. Under their strict interpretation of those four words, the rest of the act’s rules regarding federal exchanges become illogical.

Under the challengers’ reading of the law, few of the ACA’s finely specified requirements for how exchanges must operate would apply to federal exchanges at all. We would have federal exchanges, but no one could buy insurance on them – the exchanges would have no eligible customers. Chief Justice Roberts details many of these absurdities, which together render the statute ambiguous as written and amenable to the government’s saving construction.

The justices’ improved understanding of the ACA enabled the court to reach the result it did, upholding the subsidies on the federal insurance exchanges. It is precisely the court’s appreciation of the relationships between the various legal and economic parts of the act that led to its ruling for the government.

Did law professors help educate the court?

I had also previously written that one contributing factor to this improved understanding was the role of law professors, and particularly health law professors, as they wrote law review articles, op-eds, blog posts and amicus briefs articulating the various health law implications of a ruling against the government.

In the oral argument it was clear that the justices were influenced by at least some of these arguments. Most notably, Justice Anthony Kennedy appeared very interested in the brief arising out of arguments first made by Boston University Law School Professor Abigail Moncrieff, even posing a hypothetical question from that brief to the challengers.

Looking at Chief Justice Roberts’ majority opinion or Justice Antonin Scalia’s dissent, though, it is more difficult to say that either draws directly from any single law professor’s efforts.

That is partly because the opinion and dissents in King v Burwell simply cited directly the parts of the Affordable Care Act that are relevant to the case. The court also cited other cases that were referred to throughout the litigation.

Justices read newspapers and blogs

But it is difficult to escape the conclusion that health law professors’ efforts played a role in educating the justices about the deep relationships between the various provisions of the act.

As one example, Washington & Lee law Professor Tim Jost has been blogging about this case since at least the summer of 2012. His recent article listing “at least 50 provisions of the ACA [that] would be made anomalous, if not absurd” if the challengers had won is likely the most thorough treatment on the subject.

Lawyers, the justices and their clerks read blogs, newspapers and law reviews, but they rarely cite them directly. Still there are a few examples of this happening.

In an earlier decision in King v Burwell (before the Supreme Court decided to hear the case), a concurring opinion from a judge on the Fourth Circuit Court of Appeals cited two law review articles by Yale Law School Professor Abbe Gluck. Gluck went on to coauthor an amicus brief with University of Michigan Law School Professor Nicholas Bagley and others before the Supreme Court. Even if the final opinion doesn’t cite them, the work of scholars like these undoubtedly influenced the lawyers, Justices and clerks involved.

Chief Justice Roberts also looked to the work of economic scholars, citing an amicus brief filed by a bipartisan group of 52 economists no less than three times. And he went on to cite additional papers by economists and analysts from the RAND Corporation and Urban Institute, well-known organizations who have done important work in health policy for many years. He drew facts and statistics from these sources to support his argument that the consequences of a ruling for the challengers would be “calamitous.”

These “anomalous,” “absurd” and “calamitous” results that would have occurred if the challengers prevailed are precisely what render the statute amenable to the interpretation advanced by the government.

The result in King v Burwell is, in my view, something to celebrate. In the chief justice’s words:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.

And so, too, we should celebrate the deep understanding of the ACA that enabled the court to reach the right conclusion.

The Conversation

Rachel Sachs is Academic Fellow, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School at Harvard University.

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