In King v. Burwell, the Supreme Court of the United States (SCOTUS) ruled “the State” means “the State or the Federal Government” to allow subsidies for individuals who purchase healthcare policies via Exchanges established and operated by the federal government.  Obamacare is also known as The Patient Protection and Affordable Care Act (H.R. 3590 - 111th Congress; Public Law 111-148).  Please read my papers “Healthcare” and Obamacare - National Federation of Independent Business v. Sebelius for more general information on the topic.

In this challenge, the petitioners charged the Obama Administration – via an IRS rule - illegally granted subsidies to people using the federal Exchange despite the fact the law specifically reserves subsidies for users of state-established exchanges.  Section 36B states an “applicable taxpayer” may receive a subsidy (aka “refundable tax credit”) only if the taxpayer enrolled in an insurance plan via “an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.”  The language could not be clearer or more intentional.  The language also had a political purpose.  The Obamacare authors wanted buy-in from governors who did not want to take on the financial burden of establishing and operating Obamacare Exchanges.  By limiting subsidies to users of “Exchange[s] established by the State,” the authors wanted to use the subsidy as a club to force states to build their own Exchanges.  When the would-be club didn’t work, the IRS unilaterally decided to grant subsidies to users of the federal Exchange.  According to the opinion, there are only 16 state-established (including DC) Exchanges even today.  As with the individual mandate, Obamacare was doomed without subsidies.  According to The New York Times, “The Obama administration said Tuesday [3/10/15] that 11.7 million Americans now have private health insurance through federal and state marketplaces, with 86 percent of them receiving financial assistance from the federal government to help pay premiums.”  I can’t be the only person who finds it odd a law with “Affordable” in its title is so unaffordable it requires subsidies be paid to 86% of those buying “health insurance through federal and state marketplaces.”

According to the Court’s opinion (page 8), “The Government responds that the IRS Rule is lawful because the phrase ‘an Exchange established by the State under [42 U. S. C. §18031]’ should be read to include Federal Exchanges.”  That’s not what Jonathan Gruber, one of Obamacare’s architects, said.  Captured on video at least twice (Here’s one example.), Mr. Gruber said, “What’s important to remember politically about [Obamacare] is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill.  So you’re essentially saying to your citizens you’re going to pay all the taxes to help all the other states in the country.  I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

Recognizing the damage that Mr. Gruber’s comments could do, Democrats who rammed Obamacare down our throats tried to distance themselves from him.  Mr. Gruber was no minion, however.  Though the White House portrayed Mr. Gruber as a nobody regarding Obamacare, The Wall Street Journal reports Mr. Gruber visited the White House at least eight times in 2009 and 2010, and one of those visits included a personal meeting with Mr. Obama.  According to Forbes, “Gruber was paid nearly $400,000 as a White House consultant during the design and passage of [Obamacare].”  When asked during a press conference (11/13/14) if she knew Mr. Gruber, House Minority Leader Nancy Pelosi (D) said, “I don’t know who (Jonathan Gruber) is.  He didn’t help write our bill.”  Unfortunately for Mrs. Pelosi, a 2009 video caught her saying, “We’re not finished getting all of our reports back from CBO, but we’ll have a side-by-side to compare.  But our bill brings down rates.  I don’t know if you have seen Jonathan Gruber of MIT’s analysis of what the comparison is to the status quo, versus what will happen in our bill for those who seek insurance within the exchange.”  Also in 2009, Mrs. Pelosi issued a press release about “health insurance reform” that mentioned Mr. Gruber no fewer than seven times.  That press release was purged from her website and the only mention of Mr. Gruber currently on Mrs. Pelosi’s website is a transcript of the aforementioned press conference in which she said, “So I don’t know who he is.  He didn’t help write our bill.”  As for “He didn’t help write our bill,” Mr. Gruber claimed otherwise in the aforementioned video (just after 44:40 into the video).

Now let’s get to the Court.  According to the Court’s opinion (page 7), “the Court of Appeals for the District of Columbia Circuit vacated the IRS Rule in a different case, holding that the Act ‘unambiguously restricts’ the tax credits to State Exchanges.”

As Justice Antonin Scalia noted in his dissent (page 3), Chief Justice John Roberts conceded “the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State.”

After all this, you would figure the petitioners prevailed.  Nope.  As he did with National Federation of Independent Business v. Sebelius, Mr. Roberts rescued Obamacare.  In that case, Mr. Roberts ruled “penalty” really read “tax.”  In this 21-page opinion, Mr. Roberts ruled the phrase “Exchange established by the State” really read “Exchange established by the State or the Federal Government,” completely contradicting his own admission “the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State.”  Mr. Roberts referred to Obamacare’s “inartful drafting” as part of his justification.  It is not the Court’s job to fix poorly-written laws.  How many times did those who graded your homework and tests fix what was wrong and give you an “A?”  If Mr. Obama and Congressional Democrats meant the law to read “Exchange established by the State or the Federal Government,” that’s what they should have written.

Oddly, nothing about Mr. Gruber’s comments appears in the opinion.  The closest the opinion gets is in the dissent where Mr. Scalia wrote, “It is entirely plausible that tax credits were restricted to state Exchanges deliberately - for example, in order to encourage States to establish their own Exchanges.  We therefore have no authority to dismiss the terms of the law as a drafting fumble.”

In addition to ruling on specific cases, Supreme Court opinions are routinely used as precedent in future cases.  What will happen when a future case comes up about a law that says something applies only to “a State?”  Citing precedent, will future courts rule “a State” really means “a State or the Federal Government?”  What about the Constitution?  The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  What’s to stop a court from ruling the amendment really reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively and to the Federal Government, or to the people?”