The keys to the case are expected to be John Roberts and Anthony Kennedy.
The future of Obamacare again falls on the shoulders of John Roberts and Anthony Kennedy.
As the Obama administration and Obamacare opponents prepare for another Supreme Court showdown Wednesday, both sides are tailoring their arguments to win over the chief justice, who cast the saving vote for the Affordable Care Act in 2012, and Kennedy, the perennial swing vote on the Supreme Court.
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The court is likely to split largely along ideological lines with Kennedy or Roberts casting crucial votes. Some Obamacare backers are even making a pitch to Justice Antonin Scalia to look at a broad reading of the law, although winning him over seems like a long shot.
The challengers — four Virginia residents who don’t want to abide by the mandate that Americans buy health insurance — argue that the Obama administration is illegally giving out Obamacare subsidies. They say a phrase in the text of the massive law — that subsidies go to “exchanges established by the state” — only allows the money to go to residents of the 16 states, plus Washington, D.C., that set up their own insurance exchanges. If the plaintiffs prevail, more than 7 million people now receiving the subsidies in 34 states would lose them.
The opponents’ lawyer, Michael A. Carvin of the law firm Jones Day, will argue that Congress all along intended to direct the subsidies through the state-run exchange as an incentive for the states to take on that task instead of leaving it to the federal government. The plaintiffs point to early versions of health reform legislation, one considered in the Senate Health, Education, Labor and Pensions Committee, that tied together subsidies and a state’s insurance reforms.
The first goal of Solicitor General Don Verrilli is to take apart the challengers’ narrative. Several Democratic members of Congress who wrote the law told the court that there was never a plan to use the subsidies as an incentive to states. Of all the congressional debate over Obamacare in 2009 and 2010, no one considered that Democrats were setting up a scheme in which blue states would get a benefit that most red states wouldn’t accept, the government will say.
“If there was any ambiguity that not everyone [would be eligible for subsidies] there would have been a war among the Democratic Caucus that you all could not have helped but noticed,” said John McDonough, who was a senior health staffer on the HELP Committee at the time.
The Obama administration hopes to set up a scenario in which the justices agree it’s clear that Congress intended for subsidies to go to everyone. That would make it much harder for them to rule that the subsidies must end merely based on the one clause. It’s an argument that could resonate with Roberts and Kennedy.
However, the law’s critics are hoping that the two justices do precisely the opposite: that they find the phrase about the state exchanges so clear-cut that they don’t embark on a quest to sort out what Congress intended.
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