Could a ruling for Obama on health-care law allow its future 'death spiral'?
Chief Justice John G. Roberts Jr. was uncharacteristically restrained during oral arguments on the Affordable Care Act on Wednesday, but his late-timed question suggested he could vote to uphold the law while allowing for its future undoing.
Roberts’ question followed remarks about “Chevron deference,” which gives the executive branch leeway in interpreting laws, the New Yorker reports in a column by Jeffrey Toobin. The term references the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Roberts and Justice Anthony M. Kennedy are considered swing voters in the case that will determine whether tax subsidies for lower-income people will be limited to states that have set up their own insurance exchanges. The relevant provision provides for tax subsidies for exchanges “established by the state”; the Obama administration has interpreted the law to allow subsidies in nearly three dozen states that use federal, rather than state, insurance exchanges.
A ruling that residents in those states can’t get subsidies could lead to a “death spiral” for the new system set up for the law, Justice Sonia Sotomayor remarked during oral arguments.
Roberts’ question followed an assertion by Solicitor General Donald Verrilli that Chevron deference permitted the Obama administration’s reading of the phrase to permit tax subsidies in all 50 states. “If you’re right about Chevron,” Roberts said, “that would indicate that a subsequent administration could change that interpretation?” Perhaps that was true, Verilli acknowledged .
According to the New Yorker, “The question suggests a route out of the case for Roberts–and the potential for a victory for the Obama administration.” Roberts could uphold the interpretation in a vote for executive power. “A decision in favor of Obama here,” the article says, “could be a statement that a new president could undo the current president’s interpretation of Obamacare as soon as he (or she) took office in 2017.”
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