In this “friend of the court” column, I suggest with 90 percent confidence that Chief Justice John Roberts, who remained virtually silent during oral arguments before the Supreme Court on Wednesday, will join a majority of justices to uphold the subsidy provision of the Affordable Care Act.
Here is why: A decision to overturn the subsidy provision will violate the only rational interpretation of the legislative intent of the Congress that enacted the law, which was designed to incentivize and support consumers who signed up for insurance, regardless of the exchange those consumers employed to purchase the policies.
I’ve worked for House Democratic leaders and senior senators and know a great deal about legislative intent. Republicans and conservative ideologues who oppose
ObamaCare have a right to their political and policy opinions. However, their assertion that Congress intended to embed into the law a discrimination to limit which consumers would be eligible for subsidies — a discrimination that would inevitably destroy the foundation of that law and ultimately the law itself — is inherently absurd and legally untenable.
If the chief justice were to join a court majority in violating legislative intent, overturning the subsidies, creating a healthcare death spiral that would destroy the ObamaCare law, here is what would happen:
Millions of Americans would lose their healthcare. Healthy consumers who signed up would abandon their insurance in droves, destroying the business model that Congress clearly intended when it enacted the law. Insurers would increase premiums for millions of Americans, in some cases dramatically, creating widespread financial hardship and gravely damaging healthcare for citizens with pre-existing conditions and for defenseless children covered only because of ObamaCare policies purchased by parents.
Can Roberts and the other justices seriously believe that the Congress that enacted this law intended this draconian and destructive outcome, or that the Constitution demands it?
Quite the contrary.
If the Supreme Court were to destroy ObamaCare, it would inflict a damaging blow against an American economy that is painfully recovering from the most catastrophic recession and financial crash since the Great Depression.
Can the chief justice and the other justices seriously believe that the legislative intent of those who enacted the law was to impose financial hardship on millions of Americans, wreak havoc that would plague major healthcare companies, create chaos and instability that would plague state governments across America, slow national economic growth and job creation and, by hurting so many poor and middle-class Americans, worsen the great wrong of economic inequality?
I doubt it.
If I am wrong, and Roberts and the other Republican justices overturn the subsidies and destroy ObamaCare in a party-line vote, the Supreme Court will become another Washington institution that loses legitimacy with a large number of citizens and falls into widespread public disrepute.
Public approval of the court has fallen from traditional levels, but it remains more credible with citizens than Congress, where disapproval remains above 70 percent, according to the latest polling summary from Real Clear Politics.
If huge segments of American citizens see a party-line vote of the court destroying ObamaCare and then receive letters citing the court that force them to lose their insurance, pay higher premiums to insurers and endure a slowing national economy and disrupted state governments, they will be furious at the court — and many Republicans running in 2016.
This would be good for Democrats, bad for Republicans and disastrous for the Supreme Court.
The court must never lose its legitimacy, credibility and reputation for being impartial and above partisan politics and party-line votes. I believe Roberts and a court majority will ultimately agree.
Budowsky was an aide to former Sen. Lloyd Bentsen and Bill Alexander, then chief deputy majority whip of the House. He holds an LL.M. degree in international financial law from the London School of Economics. He can be read on The Hill’s Contributors Blog and reached at