Tuesday, June 23, 2015

Supreme Court speculation: 90% chance of Obamacare being okay

Sometime in the coming weeks, the Supreme Court will hand down a decision on whether the Affordable Care Act can provide subsidies on state exchanges established by the federal government. Challengers claim that this wasn't the intention of Congress, but everybody who actually voted for the bill in Congress says they intended to provide subsidies on state exchanges. If the Court decides against the subsidies, millions of people lose their health insurance until Congress comes up with some kind of fix, which won't happen anytime soon because there's no support in the Republican Party for ACA subsidies. Probably there's more interest among Congressional Republicans in having an Obama-linked disaster as they go into the 2016 elections.

The left side of the court - Ginsburg, Breyer, Kagan, and Sotomayor - is sure to support the ACA against the challenge. Scalia, Thomas, and Alito are nearly certain to side with the challenge against the ACA. So the decision rests with Roberts and Kennedy, one of whom has to side with the ACA in order for it to be upheld. I've been reading Scott Lemieux throughout this drama, and I'm probably more optimistic than he is. Only one of Roberts and Kennedy needs to vote for the subsidies. My guess is that there's about a 90% chance of state subsidies surviving.

I'd guess that there's about an 80% chance of Roberts voting in favor of ACA subsidies. He surprised everybody by casting the decisive pro-ACA vote last time. That challenge concerned the constitutionality of the individual mandate, which he upheld by claiming that it was an extension of the government's taxing power. That never struck me as a particularly plausible challenge to the constitutionality of the ACA, but this challenge is just plain weird in how it goes against every legislator's expressed intentions and most of the relevant text of the ACA. Why would Roberts defy his conservative friends' expectations by supporting the ACA against the more plausible challenge, only to abandon it against the completely implausible challenge? And why would he choose the most disruptive possible time to do so, when it would throw lots of people off of their health insurance? While Scalia is the sort to generate massive disruption to people's lives from the Supreme Court, Roberts doesn't seem to be that kind of guy. I suppose there's a possibility that he doesn't want to disappoint the conservatives again. In the 80% chance of him voting to keep the subsidies, I include him again writing some kind of concurring opinion that achieves a minor conservative goal while preserving the ACA.

I'd put Kennedy at 50%. He voted against the ACA last time, but his questions this time suggested openness to keeping the subsidies. Moreover, while the last case was about individual mandates (which are kind of odd and can displease romantic libertarians of his stripe) the relevant provisions of the ACA give states a lot of flexibility. That's the sort of thing he likes more than federal government power, making him less likely to strike them down. But he did vote against the subsidies previously. He's less likely than Roberts, as far as I can tell, to be moved by concerns like the fact that lots of people will suddenly lose their health insurance.

I've been treating their votes as non-correlated. Why might they be correlated? Perhaps because they're convinced by the same argument (unlikely) or because Roberts doesn't want to be the deciding vote again (good for the ACA since that he can only do that as part of a 6-3 pro-ACA decision). Why might they be anti-correlated? While they're both in the middle, they seem to care about somewhat opposed things, which is why I don't think they'll be convinced by the same argument. So let's split the difference and say they're non-correlated. We lose the ACA subsidies if they both vote against them, and I'm seeing the probability of that as 20% x 50% = 10%, with a 90% chance of everything being okay.