by Phil Jos

[This post originally appeared in the Charleston Post & Courier’s Letters to the Editor, 14 July 2015]

In a recent editorial R.L. Shreadley claimed that the Affordable Care Act contains “plain language” that “only insurance purchased through state exchanges can be lawfully subsidized” and that a Supreme Court refusal to strike down the Affordable Care Act will so damage the rule of law in America that it will mark another step in the decline of the American republic. In the wake of the court’s decision, an editorial by Deborah Saunders also asserts that the justices have disregarded plain language in favor of a political decision.

Both columnists have it almost exactly backwards.

Those challenging the law, after much research by political operatives opposed to the law, have found a single clause in a ten thousand page document, a clause that plainly contradicts the rest of the language in the ACA and its entire legislative history, and was, until recently, regarded as a simple mistake.

In the sections dealing specifically with granting states the flexibility to set up their own exchanges there is absolutely nothing to suggest that if the states choose not to set up an exchange their citizens would not receive subsidies. In fact, the ACA defines those qualified to purchase insurance from an exchange as those who “resides in the state that established the exchange” so if “the state” refers only one of the 50 states then we have to believe that Congress intended to disqualify individuals in states without their own exchange from purchasing insurance through the federal exchange, with or without subsidies! The intent of the act is clearly to expand coverage to all Americans who lack the financial resources to purchase private coverage without assistance (this was understood by both supporters and opponents of the law). A recent survey couldn’t find a single member of the relevant Senate committee who had any memory of Congress intending to limit subsidies to states setting up their own exchanges.

As Justice Scalia himself has written that, “in textual interpretation, context is everything.” Respecting the law, as the court has said, means determining “the plain meaning of the whole statute, not of isolated sentences.”  Four justices were willing to use an isolated sentence to strike at a program they politically oppose, five justices chose respect for law instead.

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