TED SIMONS: Coming up next on "Arizona Horizon," the U.S. Supreme Court upholds a key provision of the Affordable Care Act. We'll find out why the Phoenix Aviation Department failed to challenge federal flight path changes; and what does it mean now that Lake Mead has fallen to record low levels. Next on "Arizona Horizon."
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TED SIMONS: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. The U.S. Supreme Court today upheld nationwide tax subsidies for those who qualify for the Affordable Care Act. It's the second time in three years the High Court has rejected a major lawsuit against so-called Obamacare. Joining us now is ASU law professor Paul Bender to help us make sense of all this. Was this decision a surprise?
PAUL BENDER: I don't think so. I think most people who follow the court and these things, if they had to guess they would have guessed it would probably come out this way. I think the vote 6-3 rather than 5-4 might be a little bit of a surprise.
TED SIMONS: What do you think went on?
PAUL BENDER: You mean why 6-3 rather than 5-4? Roberts' vote was not required for the result. But he might have joined that result in order to be able to write the opinion himself. If reports stayed with the dissenters Kennedy would assign that opinion, and who knows who he would have assigned it to. I don't think he would have assigned it to himself but we'd see. If you're John Roberts you don't want to join that opinion.
TED SIMONS: But the significance of Roberts writing the opinion, talk to us about that.
PAUL BENDER: It's a good opinion. It's not as good as I'd like it to be. It's a statutory construction question, how do you read a statute. He generally says good things about how you read a statute. It's not quite as good as I'd like, but it's pretty good. Where Scalia is just off the charts is in how unresponsive he is to purposes of the statute. Basically the defense position is, if Congress makes a mistake in drafting a statute, too bad on them. They are just going to have to fix it, even though we know exactly what they wanted to do. Roberts is saying, look, we know what they wanted to do, you can read it that way, so that's how we're going to read it.
TED SIMONS: Robert wrote, a fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not destroy them.
PAUL BENDER: And everybody knows that. And so what you do is you try to interpret the statute to conform to what we know Congress' purpose was, if the words can bear that meaning. What dissent wants to do is take four words totally out of context and say, we know what that means, we don't have to look at anything else. It says state exchange, that's what it means and that's the end of the case. Roberts said very clearly you've gotta look at the whole statute before you decide whether words are ambiguous. They may look very clear if you take them out of context. Looking at them in the context the whole statute you'll find other places where they used the same words that mean a different thing. So you understand whether or not it's ambiguous. I think he very well describes why those words here are ambiguous. He says okay, once we know they are ambiguous, then we have to look to try to -- they could mean this or that. We ought to pick the this or that that is most in tune with the purpose of the statute.
TED SIMONS: It was called jiggery pokery and pure applesauce.
PAUL BENDER: Yes.
TED SIMONS: But he said words no longer have meaning.
PAUL BENDER: See, that's what I get upset with him about, he knows better than that. A statute is a communication. It's Congress communicating. Here's what we want to do. And it should be read as a communication. If I write you a five-page letter, a thousand-page letter, and you want to know what words mean, you don't take a phrase out of it, four words and say I know what those mean. You only know what they mean in the context of what I'm trying to tell you in the whole letter. We all know people use language that way. Roberts makes a good point that the statute is badly drafted, which it is. They used the reconciliation process, which meant they wouldn't have a filibuster and everything was secret, so that nobody knew what was going on. There was no legislative history. Roberts said that's unusual and Congress doesn't do a great job of drafting statutes a lot of times and they didn't do a great job here. But what does the court do when Congress doesn't do a great job? They say sorry, we don't understand, we're not going to enforce that statute. Clearly they should not do that. They should try to make the statute mean what it's clear Congress meant it to mean, if it's clear Congress meant it to mean that. Here it's clear that's what Congress meant it to mean. There's no reason Congress would want it have subsidies for people who can't afford health insurance only in states that established their own exchange.
TED SIMONS: Critics who overturned the Affordable Care Act says there was a gotcha attempt, trying to take those words out of their context, a bit of a gotcha.
PAUL BENDER: People who are opposed to Obamacare combed through the thing to try to find things they could challenge. They found this and they got some plaintiffs to challenge it. And the plaintiffs say that the reason they challenged this is that they don't want the subsidy. If they get the subsidy they have to get a health insurance policy. That's the plaintiff's interest in this case. The court could have dismissed the case with the claims lacking standing. But it's a phony lawsuit discovered or made up by people who want to challenge Obamacare. That's what happened last time, as well. Whether there are other things in the statute they can look to find and challenge I don't know.
TED SIMSON: As far as Roberts again in the majority, Kennedy in the majority, and Roberts writing the opinion, what does this say about the Roberts court?
PAUL BENDER: We find out a lot more about that in the next few days, to see what's going to happen mostly with the gay marriage case. If that -- if Roberts again in that case joins Kennedy and the liberals, and most people think Kennedy is going to go with the liberals in that case, if Roberts joins them, hey, Roberts may be pulling away from the real conservative group on the court.
TED SIMONS: Is he pulling away from conservative ideals or trying to mold the legacy of the court or make the court less partisan than most think it is?
PAUL BENDER: I don't think he's trying to make the course less partisan. He's done so many things that make the court less partisan. I think he does care about the reputation of the court. He's spent his life working with the Court and he reveres it as an institution as I think he's right to do. He wants to make sure it keeps being thought of as a really good institution. That's part of what he's doing. Here I think he is honestly saying, look, the statute's constitutional, we held that. If the statute is constitutional we should not interpret it in a way that destroys the purpose of the statute.
TED SIMONS: Last question before you go: There are other avenues that opponents of the Affordable Care Act can take legally to dismantle?
PAUL BENDER: I don't think there are any others that could really totally dismantle there. Maybe little parts that you can challenge. This, however, if the challenge here had succeeded that would have been the end of Obamacare, unless states changed their law and established exchanges. What would the chances have been that Arizona would have established its own exchange?
TED SIMONS: I think the constitution prohibits it.
PAUL BENDER: If states didn't do it, then Congress could do it. What are the chances that this Congress now would amend the statute so it could have more impact? It really would have been a big blow to the program. A lot of people would lose their health insurance, but it didn't happen.
TED SIMONS: It didn't happen.
TED SIMONS: We will keep you on board and try to get your insight and information regarding, they are coming down fast and furious.