Thursday’s ruling is the second time Chief Justice John Roberts and Associate Justice Antonin Scalia have authored dueling opinions on President Obama’s health-care reform law. The chief justice wrote the decision upholding the law the first time it came before the court in 2012, and Scalia dissented.
Roberts used Scalia’s own words against him in the case decided this week, which focused on what Congress was trying to do when it passed the Affordable Care Act, generally known as Obamacare.
Roberts and Scalia disagree on whether Congress meant for the subsidies to be available through the federally run insurance marketplace set up under the law, as the Obama administration argued, or if Congress wanted to give subsidies only to people who bought insurance through an exchange operated by a state government, as the law’s opponents claimed.
Roberts agreed with the administration. He wrote that it was “implausible” for Congress to set up a system in which people who used the federal marketplace wouldn’t be able to get financial help buying insurance. Scalia disagreed. But, back in 2012, he had written that without subsidies, “the exchanges would not operate as Congress intended.”
At that time, Scalia had been arguing that the main elements of the law — requiring most Americans to buy health insurance and expanding Medicaid to a larger number of beneficiaries — were unconstitutional. He wanted to show why the court couldn’t just throw out the parts he saw as unconstitutional, but would have to strike down the entire law.
Without these provisions, Scalia noted, premiums would be much more expensive, since the healthiest consumers — who are the most profitable for the insurance industry — would choose not to buy policies. The federal subsidies intended to make insurance affordable would have to be larger, and Scalia argued that the court didn’t have the authority to insist that the government spend far more money than Congress had intended.
And without those subsidies, Scalia went on to write, the marketplaces or exchanges set up under the law wouldn’t function — exactly the argument the Obama administration made in the most recent case.
On Thursday, Roberts took that language and used it to defend his argument that the subsidies must be upheld.
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