It's undisputed that virtually everyone had — for years — construed the Affordable Care Act to allow subsidies for Americans even if their state didn't set up an insurance exchange. But the Justice Department wants it to be clear that "everyone" includes the four conservative justices on the Supreme Court who voted to wipe out Obamacare in 2012 and will now hear a new challenge to the law.
In the government's brief defending the ACA, filed with the Supreme Court on Wednesday, DOJ returns on three occasions to the language of the joint dissent of the conservative justices in NFIB v. Sebelius. Justice Antonin Scalia was the de facto leader of the conservatives in that case, who nearly derailed Obamacare until Chief Justice John Roberts, much to the ire of his fellow legal conservatives, joined with the Court's liberal justices to mostly save President Barack Obama's signature legislative achievement.
With Obamacare under the legal gun yet again, the government is using the words of the dissenting justices to suggest they themselves interpreted the statute then as the White House does now when it comes to the core question in the new case, King v. Burwell: Does the ACA allow subsidies on the federal exchange?
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