We knew one side would be hurting.

Photographer: Andrew Harrer/Bloomberg

Subsidies and All, Obamacare Stays

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
Read More.
a | A

Yes, subsidies will remain available on federal exchanges. So the Supreme Court ruled today, in a 6-3 opinion written by Chief Justice John Roberts. I am not wholly surprised; it seemed plausible that the court might rule either way.

Insurance Exchanges

The justices might have come close to overturning the whole law in 2012, but pulled back because they feared the political fallout of destroying the Obama administration's signature legislative initiative. Similar concerns would surely be at play here, even if the justices actually thought that the plaintiff was right on the merits, so I always rated the odds of the government prevailing as somewhat higher than those for the plaintiff, even though I did not have strong opinions either way about the application of the two-part Chevron test to the Patient Protection and Affordable Care Act .

The ruling itself is pretty simple, and I'll let the chief justice sum it up: "Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid."

More on Obamacare Ruling

Feldman | Sunstein | Bernstein | Ponnuru | Editorial

What is there left to say about this? The policy implications are nonexistent; we will have what we already have. There may be legal implications, but I will leave those for actual legal scholars to hash out. But I'll pause to point out a cultural and political implication of this ruling and the drama leading up to it. Some supporters of the law declared that they were going to take their ball and go home if the Supreme Court didn't agree with their interpretation of the statute. These people wasted their time: With a 6-3 ruling, the call was not so close that the posturing pushed it over. But these people did have one effect. They eroded something in civic life that we can't afford to lose. By pretending that the Supreme Court and the rule of law were at risk in this ruling, they strained the already frayed fabric of civil society.

Obviously, there are places and times when a nation's political institutions are so corrupt and compromised that a patriotic citizen is duty bound to try to destroy them rather than let them continue to operate as they are. But that place is not the America of 2015, and the time is not "when I am afraid that the court will disagree with me about one clause of a program I think is really important." Your country needs a functioning Supreme Court, and the civic support that legitimizes it, more than it needs any government program, including Obamacare.

This is something that liberals will become well aware of tomorrow or Monday, when the court is expected to rule in favor of a broad constitutional right to marriage, including for same-sex couples. I'm a libertarian, so as you'd expect, I find that agreeable. On the other hand, as a matter of constitutional theory, I expect the ruling to be a weak outgrowth of the absurd "emanations and penumbras" seeping out of all the sexual liberty cases of the 1960s, for which I can find little actual basis in either the text or intent of the constitution. In other words, I think it will probably be a bad ruling for a good cause, which is why conservatives who sincerely believe this to be a bad cause will have a right to be mad.

What they should not do is to go into the sort of shameful tantrum we've seen from liberals on the subject of King, where they declare that a ruling against them would be a naked abuse of partisan political power by which the court has thoroughly invalidated any claim it ever had to political legitimacy. The losing side will always be displeased, but let's keep some perspective: Bush v. Gore should not cost the court its standing. Neither should Citizens United. A case like King v. Burwell should certainly not. 

We are politically fragile right now, and yet neither side is going away. As we discovered in 1861, at the national scale, there's no such thing as a tidy no-fault divorce. That's why the more divided we get, the more vitally important it is to have common institutions that both sides agree to abide with, however much it may chafe at certain moments. Yet instead of recognizing that, we are increasingly trying to destroy those institutions whenever it seems to offer temporary political advantage. However much you dislike the behavior of Congress, or the Supreme Court, or the president, you would like it even less if they really did lose political legitimacy. Because it wouldn't just be you who threw off the shackles of custom and civic restraint and disregarded rulings you disliked. Those villains on the other side would do the same.

I'm perfectly satisfied with the ruling the court got, and how they arrived at it. The court is doing fine. But the last six months have certainly cast doubt on the political legitimacy of our public debate.

  1. Actually, in the words of Scotusblog's live stream, "The Court refused to apply Chevron because it did not believe that Congress intended to delegate to an administrative agency the right to decide this question." But that's what everyone was arguing about until the ruling came down. Me, I'm not a lawyer, so how would I know?

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
Philip Gray at philipgray@bloomberg.net