Reactions: King v. Burwell Oral Argument


    By Hadley Heath

    Now that oral arguments are over and reporters from inside the courthouse have made it back to their desks, the reactions are coming strong.

    From Ilya Shapiro, Cato Institute:

    The four liberal justices clearly believe that an exchange established “for” or “in” a state by the federal government is the same as an exchange “established by the state,” to quote the relevant statute. Justices Scalia and Alito (and presumably the silent Thomas) equally firmly believe that words mean what they say.

    So this case, as expected, turns on the views of Chief Justice Roberts and Justice Kennedy, who gave very little away at oral argument. If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law. Accordingly, for the sake of the rule of law, I fervently hope that Roberts and Kennedy decide to enforce the Affordable Care Act as written and let Congress clean up its own mess.

    From Philip Klein, Washington Examiner:

    The plaintiffs in the case, represented by Michael Carvin, have argued that the authors of Obamacare intended to withhold subsidies from those states that didn't set up their own exchanges as an incentive for them to do so. But that interpretation, Kennedy said, would raise questions relating to the sovereignty of states.

    Solicitor General Donald Verrilli Jr., speaking on behalf of the Obama administration, seized on this point, arguing, "Our reading is the pro-federalism ruling." Justice Samuel Alito was more sympathetic to the challengers. He argued that in past cases, the Court has deemed it coercive if the federal government sets consequences for states regarding certain decisions, but then doesn't realize those consequences because they aren't clear.

    However, in this case, he said, states still have the option of setting up exchanges and getting subsidies. Carvin argued that the government interpretation of the law is actually the more intrusive, because of the mandates. Obamacare's fines against employers that do not offer health insurance coverage are triggered when a worker claims government subsidies to purchase insurance on an exchange — but in states where workers can no longer legally receive those subsidies, then there are no fines. Carvin argued that under the Obama administration's interpretation of the law, the federal government is able to unilaterally make decisions about the personnel policies of businesses in every state. 

    From Sarah Kliff,

    There were big surprises at the Supreme Court on Wednesday, where justices heard oral arguments in an Obamacare case that could determine the fate of the health care law.

    Ruth Bader Ginsburg questioned whether the plaintiffs in King v. Burwell, a case challenging the legality of Obamacare's insurance subsidies, even had standing to challenge the Affordable Care Act. Anthony Kennedy raised new questions about constitutionality — questions that neither the government nor the challengers brought up in their briefs. And Samuel Alito threw a total curve ball, describing an idea for subsidies no one saw coming.

    National Journal's Dylan Scott reports with some reactions from Michael Cannon and Jonathan Adler:

    The two men who masterminded the latest legal challenge that imperils Obamacare were feeling pretty good about their chances after Wednesday's oral arguments at the Supreme Court.

    Michael Cannon, a Cato Institute scholar, and Jonathan Adler, a Case Western University law professor, sat in on the hearing.

    "I'm optimistic because the two swing justices were very skeptical of the government's argument," Cannon said.

    Adler concurred. "I think we saw today is that the government's efforts to make this a textual case don't seem to be appealing to a majority of the court," he said," and that the sorts of arguments that could potentially support the government's position would pose grave risks to other federal programs."

    Chief Justice John Roberts didn't say much during Wednesday's hearing, and Justice Anthony Kennedy was tough on both sides. He did seem concerned about the federalism implications of a ruling in favor of the plaintiffs, saying during the argument that it would raise "a serious constitutional problem." Adler acknowledged is one of the most difficult issues for their side.

    And of course there are these blogs from SCOTUSblog.  

    Overall, today was not encouraging for petitioners.  Of course, the oral arguments in the 2012 cases NFIB v. Sebelius and HHS v. Florida were considered to be a train wreck for the government, and then the government ended up winning with the upholding of the individual mandate (although losing the Medicaid expansion challenge). It's difficult to guess what the Supreme Court will do. 

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    Resources for King v. Burwell Oral Argument


    By Hadley Heath

    If you're like me and can't be inside of the Supreme Court today watching the oral argument hearing live, never fear, here are some resources to help you keep track:

    SCOTUSblog has a live blog here:

    Wall Street Journal has a live blog here:

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    Video: FedSoc Expert Panel on King v. Burwell


    By Hadley Heath

    If you missed the Federalist Society expert panel on King v. Burwell, you can view it online here:


    Panelists include:

    • Prof. Jonathan H. Adler, Case Western Reserve University School of Law
    • Mr. Simon Lazarus, Constitutional Accountability Center
    • Ms. Carrie Severino, Judicial Crisis Network
    • Mr. Robert N. Weiner, Arnold & Porter LLP
    • Moderator: Mr. Robert Barnes,The Washington Post
    • Introduction: Mr. Dean A. Reuter, The Federalist Society

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    Policy Focus: King v. Burwell


    By Hadley Heath

    The Independent Women's Forum just released a policy focus on King v. Burwell. Oral arguments will be heard March 4, 2015. To download and read the policy focus, click on the image below:

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    Public Woefully Uninformed about King Case


    By Hadley Heath

    A new Kaiser Health Tracking poll shows that 56 percent of Americans say they've heard nothing about the upcoming Supreme Court case King v. Burwell. Only 5 percent of people say they've heard "a lot" about the case.

    If you are in the 86 percent of people who've heard nothing or "only a little" about King v. Burwell, here's a summary:

    The Affordable Care Act required that states establish a health insurance "exchange" or default to a federally-operated exchange. Initially, the expectation was that most states would comply and create and maintain their own exchanges. But 37 states declined to establish an exchange. Some states did so because they are philosophically opposed to ObamaCare; others did so because wading through the cost and bureaucracy of creating an exchange was too much for them.  

    The IRS was faced with a problem: The law described the state-based exchanges and the federal exchange in two separate sections (Section 1311 and Section 1321).  It never authorized subsidies to flow through the federal exchange. In an effort to fix this, the IRS decided -- even in the absence of Congressional authorization -- to push the subsidies through the federal exchange anyway.

    The question before the Supreme Court in King v. Burwell is whether the IRS acted illegally.  Advocates of ObamaCare say the difference in the exchanges was just a drafting error, and that the IRS was acting in the spirit of the law to send subsidies through the federal exchange. Challengers say that no, the original Congressional intent was to bully states into establishing an exchange by withholding the subsidies from non-establishing states. Furthermore, they point out that allowing an administrative agency to go rogue and act without Congressional authorization sets a bad precedent and defies the rule of law. 

    If the Court rules against ObamaCare in this case, the result could be that subsidies stop flowing to insurance companies in the exchanges of the 37 non-establishing states. As the Kaiser polling points out, the majority of people (64 percent) say that in the event of a King victory, Congress should act. Already, Republicans in Congress have formed a working group to prepare a policy with a responsible transition for the affected exchange consumers and options for states to restore competitive markets and affordablity to their health care systems.

    Oral arguments for the King case are set for March 4, 2015. 

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