On losing side on ACA, this lawyer stays cool

For a lawyer who has just lost what might be the most important legal case of the decade, Jonathan Adler seems unruffled.

The Philadelphia native was one of a small group of architects of the latest and likely final serious challenge to President Obama's Affordable Care Act, a case the U.S. Supreme Court decided June 25 in the government's favor.

It wasn't strictly speaking his lawsuit. The plaintiffs were a handful of people from Virginia who didn't want to be forced to buy health insurance, and if the act had been correctly interpreted, they said, there would be no such requirement for them.

But Adler, who was raised in Center City and attended Friends Central before heading off to Yale University and then George Mason University law school, provided much of the research and legal reasoning that fueled the litigation.

With Michael Cannon, a health-care economist at the Cato Institute, he wrote op-eds, testified on Capitol Hill, and filed an amicus (friend of the court) brief on his and Cannon's behalf.

Yet when the decision was released, there were no flashes of irritation, only reflection.

"For the second time in three years [Chief Justice] John Roberts has rewritten the Affordable Care Act in order to save it" was the most acerbic comment Adler, a law professor at Case Western Reserve University Law School, could muster.

He could have, probably should have, gone further.

It's difficult to read Roberts' majority opinion in King v. Burwell upholding a key piece of the Affordable Care Act as anything but a determined mission to save a dysfunctional statute. Even Roberts, who joined five other  justices  to form a 6-3 majority, writes in his opinion that the law is murky and poorly drafted.

One of Adler's baseline perceptions is that the only health-care reform bill the Democratic leadership had enough votes for was a bill that could not work. When the Senate passed its version in 2009, Democrats had a 60-vote majority, the minimum needed for passage.

The bill contained language aimed at attracting the votes of a handful of Democratic senators who were skeptical of a system run entirely by the federal government. Thus, it restricted payment of federal health-insurance subsidies to insurance exchanges, or marketplaces, established by state governments. States that relied on backup federal exchanges would be out of luck, according to Adler's analysis.

The plan was to remove that language once the House and Senate sought to reconcile differences in a conference committee.

But two significant problems emerged. Democrats lost their 60-vote majority in the Senate when Ted Kennedy died Aug. 25, 2009, and Republican Scott Brown was chosen to succeed him in a special election the following January. Suddenly, the Democratic leadership was stuck with language that, according to Adler, restricted subsidies to state exchanges.

Many states, meanwhile, rejected the idea of setting up their own exchanges and left it to the federal government.

After the law was signed, the IRS adopted a rule asserting that subsidies should be equally available on federal and state exchanges, and conservative legal theorists launched their lawsuits.

Enter Chief Justice Roberts. Roberts, after acknowledging that language in the ACA seemed to restrict payment of subsidies to state exchanges, then sought to divine what Congress really meant. In essence, he said Congress couldn't have possibly intended to restrict subsidies because the act wouldn't have worked otherwise.

Adler argues it wouldn't necessarily have been a death sentence for the ACA to bar subsidies on federal exchanges. If voters eventually realized that state governments had deprived them of a beneficial program, they may very well have protested, and demanded exchanges of their own.

The real damage, Adler says, is that courts now may feel empowered to employ imaginative reinterpretations of laws. Congress, meanwhile, may be less likely to draft precisely worded bills, relying on courts to clean up the mess.

"That is the fear; there are things in the [Roberts] opinion that encourage judges to pick and choose what parts of a statute they think are important," he said. "You are creating temptations for judges to substitute their own preferences."

Editor's Note: This story was revised to correct the Supreme Court vote to uphold the Affordable Care Act. It was 6-3, not 5-4.

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