Initial reactions to the King v. Burwell case facing the Supreme Court beginning today indicate that there’s a clear split.
Not surprisingly, the four liberal members of the court are in support of the administration’s position on the matter. But in order to win, it looks like a vote from Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy will be the only hope.
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According to The New York Times, the chief justice didn’t say much and Justice Kennedy addressed issues on both sides of the case but stated to the law challengers’ lawyer, “Your argument raises a serious constitutional question.”
As many as 7.5 million Americans would have their health insurance coverage jeopardized if it’s ruled that receiving subsidies is illegal.
The Washington Post pointed to a potential discrepancy brought up by Justice Ruth Bader Ginsburg on whether or not the plaintiffs all have standing in court, citing the fact that one of them served in the military and could potentially get coverage through the Veterans Administration.
“I’m a little concerned with how you envision this provision working,” Justice Sonia Sotomayor told Michael Carvin, the attorney for the plaintiffs.
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She said without subsidies, the insurance markets in states that have been relying on the federal exchange will likely fall apart.
“Tell me how that is not coercive in an unconstitutional way?” Sotomayor asked.
In King v. Burwell, wording of the law is the primary reason it has gotten complicated, and inevitably that came up in court. Tejinder Singh explained how approaching “anomalies” in the law were addressed for the SCOTUSblog.
Justice Breyer began by offering Carvin “5 to 10 minutes to respond” to the idea that his interpretation of the statute would create anomalies, i.e., that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical. Carvin responded by going through Breyer’s list of anomalies and offering his responses to them. He also argued that the federal government’s interpretation would create more anomalies, including the potential loss of Medicaid funding for states that don’t establish exchanges because they could not ensure coordination between the federal exchanges in their states and other relevant officials (a prerequisite to Medicaid funding).
The most interesting “anomaly” raised, and the one that received the most attention, refers to “qualified individuals” under the statute. The statute provides that insurance shall be made available on exchanges to “qualified individuals,” and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.” The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).
This issue has gotten split reviews thus far, which makes the current standing with SCOTUS not entirely surprising:
Among the six appeals court judges who considered the arguments in the two cases, two said it was clear the subsidies should not be allowed and two said it was clear the law intended for everyone to receive them. The other two formed the controlling opinion from the 4th Circuit, which said it was a close call.
“Simply put, the statute is ambiguous and subject to at least two different interpretations,” wrote U.S. Circuit Judge Roger L. Gregory.
For now, we wait and see how things developed. A decision isn’t expected until June.
This video helps outline the details of how what’s in question actually affects consumers.