Supreme Court Obamacare challenge takes shape, finally
After 80 minutes of arguments on Wednesday, the latest Supreme Court battle over Obamacare has apparently come down to two Justices, the literal meaning of eight words and a direct constitutional question.
Constitution Daily contributor Lyle Denniston will have a detailed analysis for us on Thursday morning about the major constitutional issues raised in the King v. Burwell case.
Link: Read Full Transcript Of The Arguments
Here is a brief recap of what happened in Court on Wednesday and some first analysis from other Supreme Court journalists on the Internet.
Attorney Michael Carvin argued for the plaintiffs, who believe that Section 36B of the Affordable Care Act literally says that federal tax-credit subsidies for health insurance can only be offered on an “Exchange established by the State under section 1311” of the act.
In theory, a ruling in favor of this logic would restrict tax subsidies to just the 16 states that have set up their own exchanges.
Carvin argued that this wouldn’t cause an Obamacare “death spiral” and the 34 states losing the tax subsidies for their residents would have the option to set up their own exchanges. Justice Samuel Alito also said that the Court could delay the effects of such a ruling to allow states to participate.
The four Liberal Justices asked repeated questions about the death spiral and how drastically the loss of the tax subsidies would affect residents in the 34 states.
Solicitor General Donald Verrilli argued for the Obama administration, taking the view that the broader context of the law implied that Congress meant for anyone taking part in a health-care exchange to possibly get tax subsidies, regardless of if a state or the federal government ran it. Justices Scalia and Alito asked questions about why the literal interpretation of the Section 36B shouldn’t decide the case.
Justice Anthony Kennedy asked questions to both attorneys about the constitutional implications of eliminating the tax subsides. At one point, Kennedy asks a key question to Carvin that will get much analysis in coming months: “It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there’s a serious constitutional problem if we adopt your argument.”
Kennedy’s concerns appeared to be about coercion by the federal government against the states. But he also had concerns with Verrilli’s argument “going in the wrong direction.”
Kennedy also told both attorneys to take his constitutional question seriously. “I think the Court and the counsel for both sides should confront the proposition that [Carvin’s] argument raises a serious constitutional question.”
Chief Justice John Roberts said little during the session.
Here are some quotes from Supreme Court journalists who were at the arguments or analyzed the transcripts:
“The Supreme Court on Wednesday seemed bitterly divided during heated arguments over the fate of President Obama’s health care law.
As expected, the court’s four liberal members voiced strong support for the administration’s position. But the administration must almost certainly capture the vote of either Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy to prevail.
The chief justice said almost nothing.”
David Savage and Noam Levey, Los Angeles Times
“The Supreme Court justices were sharply split along ideological lines during arguments Wednesday over President Obama’s healthcare law and its tax subsidies for millions of low- and moderate-income Americans.
To win the case, Obama’s lawyers need the vote of at least one of the conservative-leaning justices.
And only one of them — Justice Anthony Kennedy — said he would be troubled by a ruling that would take away these tax subsidies in 37 states that rely on a federally run insurance exchange.”
Robert Barnes, Washington Post
“The Supreme Court justices split along ideological lines Wednesday in questioning during the latest legal battle over the Affordable Care Act, making the outcome difficult to predict.
Chief Justice John G. Roberts Jr., who saved the act from a constitutional challenge three years ago, this time asked no questions that would betray his thoughts.”
“It’s hard to overstate how very grimly Justice Kennedy viewed the whole Obamacare project the last time the court looked at the statute, in 2012. And to be sure, he asked tough questions of Solicitor General Donald Verrilli this morning. But to the extent that anyone believed that Chief Justice John Roberts was the only one to watch in this appeal, this morning Kennedy gave them someone else to talk about: Kennedy.”
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