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Obamacare Subsidies Case: No Court or Congress Fix Likely?

By William Peacock, Esq. | Last updated on

By now, you probably know what the Obamacare subsidies case is all about. We've written about it plenty, after all.

The outcome of the case will depend on what remedy the Court chooses to fashion to deal with what seems like an obvious drafting error -- the provision that limits the availability of insurance subsidies to those who use state-built exchanges, rather than the federal exchange which covers the many states which declined to build their own. Will the Court "fix" the error by assuming that Congress meant something other than what the text says, or will it punt on the issue and leave it for Congress to deal with?

And if it takes the latter route, is there any chance that Congress will fix the subsidy flaw?

Hasen: Chief Justice Roberts Might Punt

A little more than two years ago, Chief Justice John Roberts was the swing vote that shocked Court observers by upholding the Affordable Care Act. The question now is whether, as the likely swing vote once again, he will once again save the law.

Professor Rick Hasen, in an op-ed in the Los Angeles Times argues that the subsidies provision is a clear drafting error: the law as a whole makes little sense if the subsidies provision is read to exclude the federal exchange.

But, should the justices focus on the subsidies provision in isolation (as Scalia and others are likely to do), it's possible that the Court could interpret the text as written, pass on "fixing" the alleged drafting error, and leave it Congress, knowing, of course, that Congress will do nothing.

Hasen points to last year's Voting Rights Act decision as a case where Chief Justice Roberts wrote an opinion doing exactly that -- punting to an unwilling-to-act Congress. He also notes that this is Roberts' own opportunity to "fix" a past error -- his ACA decision in 2012 was beyond unpopular with conservatives.

Harwood: Technical Fix Unlikely

If the Court does punt, how unlikely is a Congressional remedy? Over at The New York TImes, reporter John Harwood draws an interesting comparison with the mid-1990s partisan split over welfare reform. Not only was there a government shutdown and a partisan battle between Congress and President Bill Clinton, but there were errors in the 1996 compromise bill that were resolved in an easily passed 1997 technical corrections bill.

Will there be a technical corrections bill here? Harwood says that it is unlikely: the Republicans have pushed even further rightward, and unlike the 1990s battle over welfare, the Affordable Care Act was not a bipartisan compromise -- it was a Democratic bill that is still staunchly opposed by Republicans.

Prof. Harwood also thinks that a fix is unlikely. He notes that in the past few decades, Congress would routinely override Supreme Court decisions. However, for the last decade, the rate has fallen to 2.7 overrides per two-year cycle. And in the last two years, he could find only one override.

To sum it all up: if the Supreme Court declines to fix faulty legislation, a Republican congress isn't going to fix a Democratic bill that they have repeatedly vowed to destroy.

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