The Supreme Court heard oral arguments Wednesday in a case challenging the legality of Americans receiving health care subsidies through the federal exchange and which could implode President Obama’s signature legislation if the court rules against him.
Justices heard arguments in King v. Burwell. The petitioners say the law is clear in only allowing Americans to receive subsidies to offset the cost of health care premiums from exchanges “established by the state.” Opponents of the law say the language is crystal clear, while defenders say Congress surely intended for patients to have access to subsidies through the federal government if states decided not to create their own exchanges.
The issue is critical since just 14 states plus the District of Columbia set up their own exchanges.
Gayle Trotter is a lawyer and columnist, who made headlines in 2013 for her passionate defense of gun rights before the Senate Judiciary Committee. Trotter is also a senior fellow with the Independent Women’s Forum. She says this should be an easy call for the Supreme Court.
“Clearly, the stronger argument is to stick to the black letter of the law. That’s why we have laws and the rule of law. We can look at the text of the law. We can all understand it and agree and the language is very clear. The subsidies only occur when the state establishes the health care exchange, not when the federal government establishes a health care exchange,” said Trotter.
The Obama administration’s argument is that by forbidding subsidies through the federal exchange, the court would be sentencing millions of Americans to impossibly high insurance premiums, but Trotter says it doesn’t have to be that way.
“The citizens in those states should not be forced to have the individual mandate and they should not be entitled to the subsidies because their representatives decided that the costs of Obamacare outweighed the small benefits that the federal government was providing for a limited amount of time,” said Trotter.
Reports from Wednesday’s oral arguments suggested that liberal justice Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were sympathetic to the administration’s arguments, while conservatives Antonin Scalia, Clarence Thomas and Sam Alito seemed likely to back the petitioners in the case.
Chief Justice John Roberts, who is normally an active questioner during oral arguments, was noticeably quiet on Wednesday. Trotter says that might have been a deliberate strategy by Roberts after his prominent role in saving Obamacare in his 2012 ruling that determined the individual mandate was constitutional through the power of Congress to levy taxes.
“Because of that and the significant pressure that has been put on by all sorts of elite academics and media folks on John Roberts that they think was successful in the first go-around of this Obamacare fight, I think he’s holding his cards very close to his chest,” she said.
Trotter sees this case as a golden opportunity for a do-over for Roberts. In a Washington Times column this week, Trotter likened the second court fight over Obamacare to the flubbed oath of office Roberts rendered to Obama in 2009. She says this is obviously a much more consequential opportunity to right something Roberts clearly got wrong in 2012.
“Chief Justice Roberts went against what logic would dictate, what everyone thought he would decide on that case and he upheld Obamacare, torturing the logic behind it to find it a tax,” said Trotter.
The other justice to watch is Anthony Kennedy. He was an active questioner. Kennedy wanted to know whether states were under the impression there would be a federal exchange available to residents if they elected not to establish an exchange in their own states or whether they assumed people would not have access to subsidies.
Trotter says the government tried to appeal to Kennedy’s track record on questions like that.
“The government’s lawyers were certainly trying to make the argument to Justice Kennedy that this was a federalism issue, that the federal government can’t use a cudgel to make the states set up these exchanges to basically pass a law and push it on the states. They’re trying to play into what they think his judicial philosophy is,” said Trotter, who says Kennedy’s vote on this case will likely come down to a basic question.
“It’s really going to come down to whether Justice Kennedy accepts the plaintiff’s arguments or if he is subject to this sort of post hoc rationalization by advocates of Obamacare who were trying to use this to force the states to do what they wanted,” said Trotter.
If the court does strike down the issuing of subsidies from the federal exchange, it could leave the Republican majority in a precarious position. If they somehow salvage subsidies for those currently on the federal exchange, opponents of the law will likely accuse them of saving Obamacare. If they do nothing, Democrats will rail against them for forcing sky-high premiums on millions of people.
Trotter doesn’t expect it to be that dramatic.
“It is an extremely unpopular law, so Americans, and not the elite in Washington, D.C., are going to be happy if Obamacare collapses under it’s own weight. They’ve seen the rising premiums. They’ve seen the limitations of access to the doctors they want to choose. They’ve seen the choices they have not been able to make based on the types of health care they previously had,” said Trotter.
So what should Congress do if the court rules for the petitioners?
“Congress needs to come together and come up with the best patient protection type of legislation that increases free market options and makes sure that the power of the doctor-patient relationship is respected,” said Trotter.