The Supreme Court heard arguments yesterday on the most serious legal challenge to Obamacare so far. At issue in King v. Burwell is whether the language in the Affordable Care Act that provides for federal subsidies for health insurance policies purchased in exchanges “established by the state” applies also to the policies purchased in the 34 states that refused to establish exchanges.
The clumsily written and largely unvetted law and the way it is being applied poses other questions for the court: Does a law mean what it says, or what it surely must mean? Do the words in a law mean what was originally intended (there is evidence that the writers of the law actually intended the provision to apply to state exchanges only in order to coerce states to establish them) or what the bureaucracy wants it to mean?
The U.S. Supreme Court appeared sharply divided on ideological lines on Wednesday as it tackled a second major challenge to President Barack Obama’s healthcare law, with Justice Anthony Kennedy emerging as a likely swing vote in a ruling.
The nine justices heard 85 minutes of arguments in the case brought by conservative opponents of the law who contend its tax credits aimed at helping people afford medical insurance should not be available in most states. A ruling favoring the challengers could cripple the law dubbed Obamacare, the president’s signature domestic policy achievement.Kennedy, a conservative who often casts the deciding vote in close cases, raised concerns to lawyers on both sides about the possible negative impact on states if the government loses the case, suggesting he could back the Obama administration. But he did not commit to supporting either side.
Chief Justice John Roberts, who supplied the key vote in a 5-4 ruling in 2012 upholding the law in the previous challenge, said little to signal how he might vote.
The court’s four liberals appeared supportive of the government. Conservatives Antonin Scalia and Samuel Alito asked questions sympathetic to the challengers. Fellow conservative Clarence Thomas, following his usual practice, asked nothing. . . .
The legal question is whether a four-word phrase in the expansive law saying subsidies are available to those buying insurance on exchanges “established by the state” has been correctly interpreted by the administration to allow subsidies to be available nationwide.
Exchanges are online marketplaces that allow consumers to shop among competing insurance plans.