On Wednesday, the Supreme Court heard oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act. We will not know the court's decision, as well as the fate of millions whose access to insurance hangs in the balance, until June, and the arguments cannot leave anyone certain about the outcome. But here are four takeaways:
On the merits, the challengers should lose
Michael Carvin, the lawyer representing the challengers, doubled down on the theory that lies at the crux of the case: that Congress fully intended for subsidies not to be available on state exchanges established by the federal government. His theory is that it was critically important for Congress that the states establish the exchanges themselves. "If you provide…subsidies to [federally established] exchanges," argued Carvin, "you have essentially gutted Section 1311's strong preference for state exchanges."
This argument is, however, transparently bogus, a product of libertarian cranks projecting their own priorities onto legislators who manifestly do not share them. Everything about the structure of the Affordable Care Act — starting with the title — indicates that people having access to affordable health insurance was the statute's most important priority, with the level of government that administered the exchanges being a peripheral concern at most. The challengers cite the position of former Sen. Ben Nelson of Nebraska — who was most responsible for the ACA not simply having a single federal exchange — but he has repudiated the view attributed to him.
This isn't surprising: the historical evidence against Carvin's theory is unambiguous. Then there's the fact that if Congress thought states setting up the exchanges was of supreme importance, it would have refused to establish a federal backstop — not go to the trouble of creating an entirely useless one. As Solicitor General Donald Verrilli observed, this reading "makes a mockery of the statute's express textual promise of state flexibility."
Federalism might save the ACA
That the challengers' argument is terrible doesn't mean that it won't succeed — motivated reasoning, particularly in an increasingly partisan court, is a powerful thing. There are four certain votes to uphold the subsidies on federal exchanges and three certain votes not to. So it all comes down to Justice Kennedy and Chief Justice John Roberts.
Justice Kennedy gave some hope to supporters of the ACA (and proper statutory interpretation) by suggesting that reading the statute in the way that the challengers suggest would violate state sovereignty, since it would entail that the government could severely punish uncooperative states by ruining their health care markets. "From the standpoint of the dynamics of federalism," Kennedy told Carvin, "There's a serious constitutional problem if we adopt your argument." It's not surprising that this argument would have some appeal for Kennedy.
Kennedy's comments about federalism have led to optimism from savvy observers such as Brianne Gorod and Ian Millhiser, both of whom expect the government to win. I'm less confident; Kennedy's suggestions were tentative and ambivalent, and he voted to strike down the entire ACA as unconstitutional the last time it came before the court. But it's certainly possible that concerns about states' rights will compel Kennedy to reluctantly side with the government.
The sphinx at the center
Of course, the government may not need Kennedy's vote. Chief Justice Roberts provided the swing vote to uphold the constitutionality of the Affordable Care Act the first time around, and it's possible that he could provide the key vote to prevent the destruction of a majority of the nation's health care markets. We don't know anything more about how he will vote on the merits, however, since he was nearly silent during oral arguments.
The one area where Roberts decided to leap in was to ask Verrilli about the standing of the plaintiffs: "You're surely not raising a standing question with us here for the first time at oral argument, are you?" The disinterest of both the chief justice and the government in pressing the point makes it highly unlikely that the case will be dismissed on standing grounds.
Antonin Scalia is a hack
Because of Justice Antonin Scalia's long history of supporting judicial deference to the executive branch, as well as his sporadic commitment to protecting states from federal coercion, some supporters of the law allowed themselves a little optimism that Scalia might side with the government.
Nope. This was never realistic, and yesterday's argument made it clear that Scalia is a mortal lock to side with the ACA's opponents. He was consistently sympathetic to Carvin and persistently expressed hostility to the law when questioning Verrilli, at one point calling the solicitor general's textual argument "gobbledygook."
Particularly remarkable, however, was this exchange:
SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?
VERRILLI: Well, this Congress? [laughter]
VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.
SCALIA: I don't care what Congress you're talking about. If the consequences are as disastrous as you say, so many million people without insurance and whatnot — yes, I think this Congress would act.
Scalia's argument, of course, came straight from a land of willful fantasy. It's tempting to dismiss Scalia's comments as politically naïve, but I think it's more pernicious than that. Scalia has long shown an affinity for the most witless Fox News talking points. Republicans have been making a conscious effort to reassure the court that they have a plan should the court gut the ACA. Needless to say, they don't actually have any plan — pretending to have a plan is their only plan. Indeed, Republicans in Congress are so dysfunctional that they can barely even pretend to have a serious alternative, and any attempt to fix the law would assuredly be stillborn.
The Republican alternative should the court willfully misread the law and ruin the federally established exchanges is a con somewhat less sophisticated than selling oceanfront property in Wyoming — but it's good enough for Scalia! That tells you all you need to know about the extent of his fidelity to judicial ideals.
Scalia's naked partisanship, however, means that this case has very high stakes for millions of people. And it remains entirely possible that a bare majority of the Supreme Court is about to make their lives significantly worse, and for no good reason.