The Supreme Court yesterday issued its decision in Utility Air Regulatory Group v. EPA, a case concerning the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions, especially carbon dioxide. The ruling is highly technical and somewhat narrow as evidenced by the fact that both side are claiming a victory. However, I believe that the court’s ruling may have a far more important result than most people realize. Utility Air Regulatory Group v. EPA may have just gutted the Affordable Care Act.
Let me quote three sentences from Justice Scalia’s decision:
“The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.” (p26 of the Syllabus)
“An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” (p24 of the Syllabus).
Part of the Affordable Care Act provides for subsidies to those purchasing insurance through State exchanges subject to income-based eligibility rules. There are currently multiple lawsuits working their way toward the Supreme Court over the legality of the Obama administration’s decisions to extend those statutorily created subsidies to the federal exchanges that provide access to coverage in states that chose not to set up their own exchanges.
These cases make the simple point that the statute limited subsidies to State exchanges. The Obama administration claims that Congress assumed every state would set up its own exchange, but it turned out that only about half the states did. Because trying to bribe states into cooperating with the implementation of Obamacare did not work, the Obama administration simply reinterpreted the statute because otherwise it would not work in practice. This seems to be exactly what the Supreme Court said is impermissible.
In Halbig v. Sebelius, the U.S. District Court for the District of Columbia has already ruled against the plaintiffs in one such suit, with the judge determining that extending the subsidies is a reasonable way to reach the policy goals of the statute. However, this new ruling on greenhouse gas emissions would seem to be tailor made for the anti-Obamacare cases focusing on the subisidies offered on the federal exchange (the infamous healthcare.gov).
The myriad changes made to Obamacare would seem ripe for a challenge that quoted the exact language above from the ruling on the EPA’s power to regulate greenhouse gasses. Michael Cannon has made the same point in regards to the Appeals Court ruling on Halbig v. Sebelius here. According to the Galen Institute, the Obama administration has made twenty-three significant changes to the Affordable Care Act without legislative approval by Congress. The Obama administration has been clear that these changes were made in order to help achieve the goals of health care reform. Yet, it appears that is not a constitutionally acceptable action to take.
If the administration cannot ignore the language of a law just because it will not work as written, the administration is in big trouble on Obamacare. An enormous amount of the regulations written to implement the Affordable Care Act appear to ignore or reverse parts of the original Act. The Obama administration has been arguing that it is following the intent of the law and lower court rulings have come down on both sides so far on the constitutionality of these extra-statutory actions.
The Supreme Court may have just signaled which way they will rule when these cases reach them. If so, Obamacare is facing a major setback and even a possible collapse. After all, if subsidies to buy health insurance are only available in some states, it is hard to see how the public (and Congress) could tolerate such an inequity for long.
While everyone focuses on the impact of Utility Air Regulatory Group v. EPA on the government’s power to address climate change, the Supreme Court may have done more to impact the future of Obamacare with their ruling than they did to impact the future of the world’s climate.
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