The Supreme Court has agreed to hear an ill considered challenge to the Affordable Care Act based on the idea that since Congress didn’t explicitly authorize, and may have forbidden, the creation of a federal exchange consumers in those 34 states without a state exchange are receiving illegal tax credits. This approach seems valid on its face, but it behooves conservative backers to remember the higher law we often remind liberals of, that of unintended consequences.
First, it bears remembering that Chief Justice Roberts proved himself a supported of ACA, and no supporter of Congressional intent in this context, with his contortions in redefining something that Congress explicitly said was a fine and not a tax as a tax and not a fine. He had a much less suspect approach available. He could have found, citing Justice Scalia in Gonzalez v. Raich, among others, that the individual mandate was a Necessary and Proper provision to enforce Congressional Commerce Clause power. Is it really wise to give him the chance to revisit the issue, double down and perhaps use a dissenter’s own prior opinion against him?
If the tax credits are found to be illegal, does that mean repayment? Before falling back on Mitt Romney’s winning 47% theory, realize that doubling and tripling the cost of individual market premiums and causing insurers to boot many consumers off existing health plans put many small business owners in those exchange plans. Somebody call Joe the Plumber. If I were a betting man, I’d give good odds that he got a credit.
But perhaps most importantly, this particular approach seems fraught with the particular peril of completely federalizing health care, perhaps indirectly. If the federal exchange is ruled to violate Congressional intent, as it seems to, that would mean that citizens in 14 states would receive tax credits at the expense of those in 36 others. That could, in fact should, mean an equal protection challenge to the law for the consumers in the 36 states without state exchanges. While that challenge might eliminate the tax credits in the other 14 states, it’s every bit as likely under Chief Justice “It’s Not A Fine, It’s a Tax” to result in the elimination of the state exchanges and replacement with a single federal system. In fact, given his disregard for Congressional intent in the prior case, there is no reason to think he won’t foresee the issue and merely federalize health care completely in this one.