Yesterday’s arguments in the King v. Burwell case left the Supreme Court in a position of relative indecision with a clear party divide. It could go either way, it seems, but the issue of whether or not millions of Americans would have their health insurance coverage jeopardized, if it’s ruled that receiving subsidies is illegal, is one that calls for immediate, thoughtful commentary.
In order for us to have a good idea of how things could potentially play out, keeping an eye on pundit perspectives is useful. Here are some thoughtful insights expressed thus far.
1. Thoughts from Ross Douthat via The New York Times‘ Opinion Pages:
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Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there. But the extent that we’re talking about the intent of the drafters as a collaborative group, my sense is that they’re telling the truth about having no such plan in mind, and thus that the text as we have it is the result of accident and oversight and blundering rather than design.
2. For New Republic, Brian Beutler pointed out the significance of credibility issues the Supreme Court is facing due to the four people involved on the petitioner side.
Key issue being: “First, that they joined the case out of ideological resentment, antipathy to Obama, or basic misinformation, rather than legitimate injury; and second, more troublingly, that they aren’t actually eligible for supposedly unlawful subsidies, and thus lack standing to challenge them in court.”
That the challengers had such a difficult time finding photogenic victims to stand in as plaintiffs epitomizes the case itself. Listening to conservatives today, you’d get the impression that the law’s opponents have consistently argued that Congress designed the ACA to strong-arm states into setting up their own exchanges, by threatening to withhold subsidies from their residents and thus destroy their insurance markets. But if you trace the argument to its origins, you find it evolved to backfill holes in a grander strategy to expunge the ACA by any means necessary. Scouting plaintiffs was merely one late part of that process.
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3. Amy Howe shared on SCOTUSblog how it’s clear that specificity and intent are the most complicated aspects of this case, especially concerning comments involving Solicitor General Don Verrilli, the government’s top lawyer at the Supreme Court, and Justice Anthony Kennedy.
Justice Kennedy’s concerns about states’ rights resurfaced again during Verrilli’s argument, but this time pointing in the other direction. Responding to Verrilli’s contention that it would not have made any sense for the ACA to include a provision for the federal government to set up exchanges if Congress envisioned that the states would all do so, Kennedy suggested that the fall-back option might have been added so that the states could “show that they had concerns about the wisdom and workability of the [ACA] in the form that it was passed.” Later on, Kennedy also challenged other aspects of the government’s reading of the statute – for example, he cited the Court’s earlier cases to make the point that, if the IRS is going to allow “billions of dollars” of tax deductions for the subsidies, “it has to be very, very clear.”
4. Timothy Jost did a good job of breaking down the case as it stands for the Health Affairs blog, pointing to a key area of contention concerning the plantiffs’ attorney Michael Carvin’s arguments.
As Mr. Carvin’s opening argument drew to a close, a key disagreement came into focus. As Mr. Carvin tried to explain what “qualified individual” could mean other than an individual eligible to enroll through an exchange; he contended that, having established his interpretation of “Exchange established by the State” as a fixed star in the firmament, it was only necessary to interpret the remainder of the statute to avoid an absurd result. Justice Kagan responded,
“But we are interpreting a statute generally to make it make sense as a whole, right? We look at the whole text. We don’t look at four words. We look at the whole text, the particular context, the more general context, try to make everything harmonious with everything else.”
How King v. Burwell is decided may largely turn on which of these two approaches to fidelity to the text of the statute the Court chooses
5. Margot Sanger-Katz for The New York Times spelled out how the Supreme Court’s decision could take us from an already unfortunate place where low-income Americans are taking the brunt of health insurance withholding to including the middle class as well.
Of course, health care access was deeply unequal in the years before Obamacare, when a hodgepodge of state laws and financial conditions dictated who could afford health insurance. The law sought to make insurance and access more standard, by setting national definitions of what counted as health insurance and by providing federal dollars to help low-income people across the country get covered.
But a ruling for the King plaintiffs could make things even more disparate than they were before the law passed — in addition to the new taxes, new insurance regulations could mean skyrocketing individual insurance premiums in states that lose their subsidies. That could cause even people who had bought their own insurance before the law to be priced out of the market.
[Photo from Flickr user Neil R]
