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Supreme Court Hears Oral Arguments in King v Burwell

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On Wednesday, the U.S. Supreme Court heard oral arguments in King v. Burwell, the latest case challenging the Affordable Care Act’s (“Obamacare’s”) implementation, regarding state-established and federally established exchange programs for choosing health coverage options provided under Obamacare.

Unlike Obamacare’s first appearance in the Supreme Court, National Federation of Independent Business v. Sibelius (2012), this case does not question constitutionality of the law.

There are two major issues that the court must address. First, the court must determine whether the plaintiffs have standing to sue. Only those who have been wronged or harmed by the law may file suit against it. Therefore, the court must address whether or not the plaintiffs were actually injured by Obamacare in order to sue before they can even address the legal challenge brought by the plaintiffs.

The legal challenge concerns four words in the text of the Affordable Care Act: “established by the State.” Those words are in a small section of the text, referring to subsidies that would be provided to help people purchase health insurance through Obamacare. The plaintiffs claim that a clear reading of the law’s language shows that subsidies can only be provided to individuals enrolled in exchanges established by the state, as opposed to an exchange established by the federal government.

During oral arguments, Justice Ginsburg questioned King’s attorney on whether any of the plaintiffs had standing to sue, as these plaintiffs may have some sort of exception to the individual mandate, and if they are not actually harmed, they cannot bring suit.

Justices Breyer, Sotomayor, and Kagan aimed their questions towards the exchange programs, and heavily discussed the Government’s arguments, stating there is no difference between State-established exchanges and those operated by the federal government within the states that do not create their own.

They asked King’s attorney to explain how substituting State-established exchanges with DHHS-established exchanges operated in the states is not sufficient enough to warrant tax subsidies for individuals who purchase health insurance through exchanges established by the DHHS, as the ultimate goal of purchasing insurance through these programs is completed either way. King’s attorney responded, saying Obamacare makes the distinction clear by referencing the two types of exchanges, and if Congress meant for the two to be synonymous, it would not have gone through the trouble of making distinctions between the two.

On the other hand, Justices Scalia and Alito grilled the government’s lawyer on why the law’s language distinguished between state and federal exchanges if they were essentially the same.  The government’s attorney argued that if these subsidies only apply to exchange programs actually established in the states and not by the federal government, the distinction would conflict with the overall goal and message of the Obamacare statute, which is to give affordable health care to everyone.

Justice Thomas did not ask any questions during the oral argument, though his reputation of ruling against expanding federal government policies suggests that he will favor the plaintiffs.

Chief Justice Roberts seemed to play moderator during arguments by extending the time allotted for each argument and making sure everyone had a chance to speak. Roberts was the deciding vote in National Federation of Independent Business v. Sibelius, where he ruled in favor of the government, arguing that the court should defer to the legislature.

Justice Kennedy, famously known as the court’s swing vote, was primarily concerned with the possible constitutional consequences the court would face if it ruled in favor of King. He states that if King is successful, the law may coerce states to either establish their own exchange to give citizens access to Obamacare subsidies, or face political backlash. Political coercion is unconstitutional, and causing this coercion may make the whole provision unconstitutional. As a general rule of thumb, the Court will not interpret a statute in a way that leads to constitutional problems. While the government’s attorney agreed with Justice Kennedy, King’s attorney argued that citizens still get the benefits of the program, even without a subsidy to lower the cost, so there is no worry of coercion towards the States.

The Court will likely release an opinion right before its summer recess in late June. The transcript for the oral argument can be found here.

About Nathan Hitchcock

Nathan Hitchcock is currently a law student at the University of Maine School of Law and volunteers as a researcher for the Maine Heritage Policy Center. Prior to law school, he attended Hillsdale College in Michigan, where he earned a B.A. in Political Economy.

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