By Mark Fitton
Illinois News Network
SPRINGFIELD — The fate of the Affordable Care Act, often called Obamacare, may rest in the hands of two U.S. Supreme Court justices after a hearing Wednesday.
The petitioners in the case before the high court, King v. Burwell, are challenging the validity of the health insurance exchange run by the federal government.
The core of the opponents’ argument focuses on the phrasing within in the act, particularly that a health insurance exchange be “established by the state.”
The government’s attorneys say such a reading leans unreasonably on a few words of the act. They say the legislation’s clear intent is to allow purchase — with subsidies — of health insurance through a state-run exchange or, alternatively, a federally run one.
Thirty-four states have opted not to run their own exchanges, meaning the opponents’ position — if validated by the high court — could derail or massively change the Affordable Care Act.
One think tank, the Urban Institute, estimates that if the King stance is upheld, federal subsidies would be reduced by about $29 billion in 2016 and the number of uninsured would increase by more than 8 million people.
Illinois’ exchange is, for practical purposes, a federal one, although the state has taken a partnership role in some aspects.
The standard or conventional read on Wednesday’s hearings has it that four “liberal” justices will support the government position. They are Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan.
Three justices — Antonin Scalia, Clarence Thomas and Samuel Alito — are thought to be sympathetic to the ACA opponents.
That leaves Chief Justice John Roberts and Justice Anthony Kennedy as the potential “swing” votes. If either wholly supports the government position, the act stands.
Roberts, who gave away little in Wednesday’s proceedings, is considered a conservative jurist, but in the past has — on a very different point of law — voted to uphold the act.
Most observers of the oral arguments keyed on Kennedy, a Reagan appointee but frequent swing vote.
“Going into the arguments, I’d have said the challengers arguments would prevail,” said William Baude, a law professor at the University of Chicago. “Now, I’d have to say it looks like a tossup to me.”
Baude said Kennedy was very active in questioning and appeared sympathetic toward the government’s position, but he also showed interest in textual and constitutional arguments made by the challengers.
Andrew Koppelman, a professor of law and political science at Northwestern University, said he expects the court will uphold the government’s position, perhaps largely because “Anthony Kennedy loves states rights slightly more than he hates Obamacare.”
Simply removing the federal exchange option and forcing the 34 states to either establish their own exchanges or forfeit millions, if not billions, of dollars is the equivalent of the federal government’s “placing a gun to the head of the states,” Koppelman said.
Baude said even if the ACA opponents prevail, a complete and sudden derailment of subsidized health insurance is probably less likely than some people think.
There would be at least four distinct legal-political players with an interest in avoiding total upheaval, he said.
The Supreme Court, even if it issues a game-changing ruling, could stay its decision in order to allow time for government action.
Democratic President Barack Obama and the Republican-controlled Congress would have interests in finding some way to provide affordable health insurance to those people who cannot buy through their employers. Whether those interests can be meshed is hardly certain, though.
Finally, Baude said, there are the states themselves.
In the states that have not set up their own exchanges, even governors and legislatures ideologically and politically opposed to mandatory, subsidized health insurance might feel enormous pressure to provide some sort of relief.
The court’s decision is expected by late June or early July.