In late June, in an opinion written by Chief Justice John Roberts, the Supreme Court forcefully rejected an invitation to willfully misread the Affordable Care Act in a way that would have destroyed health insurance markets in a majority of states. While the outcome of the case was not shocking, the forcefulness of Roberts' opinion was certainly surprising. One explanation for it can be found in the defiant postmortem written by the architect of the suit, the Cato Institute's Michael Cannon.
Cannon's op-ed begins with a familiar tactic of the ACA's opponents — a ludicrous distortion of the legislative process. According to Cannon, Democrats passed the ACA "[i]n haste. In desperation. Without knowing what was in it. With no bipartisan support. By one vote." Well, the charge of a lack of bipartisan support is true, although also irrelevant — congressional Democrats can hardly be blamed for not garnering any support from a party committed to a strategy of opposing any legislation supported by President Obama.
The rest of the description is farcical. The idea that a process that began almost immediately after Obama's inauguration in January 2009, that endured a torturous grind through five Senate committees, and that culminated in a bill signed into law in March 2010 was characterized by "haste" is particularly special. The ACA was, in fact, passed with somewhat less haste than a turtle crawling through a tar pit. Nor did the Senate version pass by one vote — it passed with a 60-40 super-majority.
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As with most of the ACA's opponents, for Cannon the only legitimate process for health care reform is one that would have resulted in the alternative Republicans offered for those without decent insurance in 2009: nothing.
But even more telling is Cannon's conclusion. By upholding the constitutionality of the ACA, then refusing to misread the law to deny subsidies to people purchasing health insurance on exchanges established by the federal government, he asserts, the Supreme Court acted "to disenfranchise Republican and independent voters who swept ACA opponents into state office in 2009, 2010, and 2011 for the purpose of blocking the ACA."
The most obvious problem with this argument is the electoral dog that isn't barking. Allegedly, single special elections in 2009 and 2011 are supposed to be decisive repudiations of the Affordable Care Act. But the most representative election since 2008 — the presidential election in 2012, which resulted in the man who signed the ACA getting nearly five million more votes than his opponent — is pointedly ignored. (Republicans did hold the House in 2012, but this was a result of districting and gerrymandering — Democratic House candidates got 1.4 million more votes than their Republican opponents.)
The idea that the Supreme Court is required to follow the returns of special Senate elections in Massachusetts is…novel. The idea that the court is required to allow these results to trump the results of national elections is even dumber.
But it's even worse than this. With this sentence, Cannon is spitting out his own snake oil. Remember that the premise of the King v. Burwell lawsuit was that the plaintiffs were allegedly just asking the court to enforce the law that Congress wrote. Cannon was the most aggressive proponent of the ludicrous, dystopian science fiction version of the ACA, claiming not just that the letter of the law required that subsidies not be available on federal exchanges, but that Congress also fully intended to establish federal backstops that it knew would fail.
In a refreshing, if inadvertent, moment of honesty, Cannon is conceding the obvious: the King lawsuit wasn't designed to uphold the statute passed by Congress in 2010. It was intended to "enfranchise" the people who voted against the bill. And this is something that should always have been obvious from the fact that Cannon could not find any supporter of the ACA who could back his irrational reading of the law. In a constitutional case, this might not tell us much. But in a case involving statutory interpretation, the uniform rejection of the theory advanced by the bill's opponents — both contemporaneously and in 2015 — should have been dispositive.
The fact that King was based on an almost comically transparent historical sham surely helps to explain why Roberts rejected the argument of the plaintiffs so forcefully. He declared that "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them," and foreclosed a different interpretation of the law by a future Republican administration. It also helps to explain why Justice Anthony Kennedy joined the majority even though he voted in 2012 to strike down the law in its entirety. The contempt the court showed for the people who brought the suit certainly wasn't the product of any love for the ACA.
My guess is that Cannon and his collaborators had burrowed so deeply into their alternate universe that they fully expected evidence to emerge showing that Congress intended for its federal backstop to fail. (When it didn't emerge, they desperately tried to manufacture some, but their "evidence" was so dishonest even most supporters of the lawsuit ignored it.) The work done by many scholars and journalists exposing the fraudulent nature of Cannon's history of the ACA may well have played a significant role in the surprisingly decisive rejection of the latest challenge.
As some opponents of the ACA have ruefully noted, one clear message of Roberts' opinion was essentially this: "Stop bothering us with these frivolous ACA lawsuits." Roberts and Kennedy may not like the ACA, but they also don't like being played for fools and made pawns in partisan litigation. If opponents of the ACA want to succeed in their quest to deny health care to the non-affluent, they are going to have to do so at the ballot box.
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