WASHINGTON — The Obamacare case before the Supreme Court is too close to call, leaving the fate of President Barack Obama’s signature domestic achievement up in the air.
Chief Justice John Roberts, considered a critical swing vote in the case, barely spoke during the hour-long oral arguments Wednesday morning in King v. Burwell, dropping no strong clues about how he would rule.
Justice Anthony Kennedy appeared to sympathize with the challengers’ argument that the plain text of the law forbids subsidies on the federal exchange serving some three dozen states that didn’t build their own. But he also seemed deeply worried about an intrusion on states’ rights if their interpretation carried the day, arguing that it might be unconstitutionally coercive to states because their insurance markets would be imperiled under a federal exchange that lacks the authority to provide subsidies.
“Perhaps you will prevail in the plain words of the statute,” Kennedy told the challengers’ lawyer, but “there’s a serious constitutional problem if we adopt your argument.”
He added that the federalism question is “in the background of how we interpret this statute” even though “it may well be that you’re correct as to these words, and there is nothing we can do.”
The four Democratic-appointed justices came out in full force to defend the law, while Republican-appointed Justices Antonin Scalia and Samuel Alito came out strongly in favor of the challengers’ reading. Justice Clarence Thomas did not speak, as is customary for him, but he’s widely expected to rule for the challengers.
A ruling against the Obama administration poses an existential threat to the law as it would erase subsidies in about three dozen states which help Americans afford coverage. If they are invalidated, the health care markets could be thrown into disarray, force a spike in premiums and imperil the rest of the law.
Stoking the federalism concerns was Justice Sonia Sotomayor, warning that the opponents’ interpretation asks the Court to read the statute “as intruding on the federal-state relationship” as such a decision would imperil health insurance markets in states and cause a “death spiral” of rising costs.
President Barack Obama in Washington, D.C., on February 2, 2015. Photo Credit: Kristoffer Tripplaar/ Sipa USA
Scalia suggested that the provision in the law was “clear” that the subsidies are restricted to state-run exchanges, regardless of what that means for the rest of the law.
“If it can only reasonably mean one thing, it will continue to mean that one thing even if it has untoward consequences for the rest of the statute,” he said.
Standing — the question of whether any of the four plaintiffs truly suffer an injury that allows the courts to step in — could also be an issue.
Justice Ruth Bader Ginsburg interrupted mere seconds into King lawyer Michael Carvin’s arguments to probe him on standing. The government’s lawyer, Don Verrilli, later said the government doesn’t possess the necessary information to know if all four of the plaintiffs can be disqualified on standing.
“The court has an obligation to look into it on its own,” Ginsburg said of standing. “I don’t think it was ever brought up in lower court,” she said, referring to standing questions about two of the four plaintiffs.
She was also far from convinced of the merits of the lawsuit.
“I have never seen anything like this where if you take what the statute says … then you get these disastrous consequences,” she said.
Justice Elena Kagan, who was Obama’s solicitor general before her appointment to the court in 2010, was noticeably agitated by what she described as “this never-ending saga” of Obamacare litigation. She appeared thoroughly convinced that the law, as a whole, permits the federal exchange subsidies, and she noted that nearly everyone involved in it thought the same thing.
“This took a year and a half for anybody to even notice this language,” she said.
SCOTUS arguments King v. Burwell
This article has been updated since publication.
Since standing is one of the (many) weak points in the plaintiff’s case, did our guys drop the ball here?
Maybe this is a paranoid worry, but might Kennedy be laying the groundwork for tossing out the ACA as unconstitutional? For instance, suppose he agrees with the plaintiffs that the ACA’s language denies subsidies to citizens in states without state-created exchanges. But as he notes, this would send the insurance markets in such states into a death-spiral. So with this reading, the ACA in essence compels states to form state exchanges. That’s the worry that Kennedy voiced this morning. Now, to my mind, that problem is decisive evidence that the plaintiff’s reading of the ACA language is flawed. But it’s open for Kennedy (and other conservative justices) to say: the plaintiff’s reading is right, and since on this reading the ACA is unconstitutional, it follows that the ACA is unconstitutional.
I doubt Kennedy would go in for such a naked act of judicial activism. But I’m starting to worry…
Basically what Scalia is saying is that we should ignore the rest of the text in the law and only focus on that one sentence. Got it. He’d be a horrible book reviewer.
“Standing — the question of whether any of the four plaintiffs truly suffer an injury that allows the courts to step in — could also be an issue.”
Not from what I have been reading on SCOTUSblog. Ginsberg tried to raise the standing question, but it was largely poo-pooed by the conservatives and treated as a non issue. She dropped that line of questioning pretty quickly. I think it was more just a CYA move by her than anything else.
The big surprise is the question Kennedy seemed to be raising…which is, by accepting the plantiff’s argument, the Court would essentially be back tracking on their ruling regarding the Medicaid expansion…namely that Congress is unconstitutionally being coercive with the states.
But, as I often say about Scalia, he firmly believes that consistency is the hobgoblin of lesser minds, so it won’t bother him.
Why isn’t standing being more passionately questioned on this case? Isn’t that the first, and the most basic, question the Court should address?