Roberts, savior of health law in last challenge, silent during new fight – Los Angeles Times

Posted: Wednesday, March 04, 2015

Three years after he rescued the Affordable Care Act, shocking both supporters and critics of the health law, Chief Justice John G. Roberts gave little hint Wednesday how he might rule in the latest major challenge to the sweeping law.

In more than an hour of oral arguments, the often-vocal chief justice remained mostly silent, asking just three questions, only one of which got at a substantive issue in the case.

Trying to gauge how justices will rule in a case based on what they say and how they act during oral arguments can be difficult. But as the Obama administration looks for a crucial vote on the court’s conservative wing, Roberts offered few indications he was ready to play savior a second time.

And while Justice Anthony Kennedy, another possible swing vote, voiced some reservations about the challenge, he has been a harsh critic of the health law, voting three years ago to repeal it altogether.

The four liberal justices, who grilled the lawyer representing the challengers Wednesday, are widely expected to vote to uphold the law this time.

The challenge – brought by a group of conservative and libertarian activists – argues that a strict reading of the statute makes health insurance subsidies available only in a handful states, including California, that established their own insurance marketplaces through the law.

Thirty-seven states elected instead to have the federal government fully or partially operate their marketplaces using the HealthCare.gov website.

Kennedy said Wednesday he would be troubled by a ruling that would take away these tax subsidies in 37 states that rely on a federally run insurance exchange.

That would raise “a serious constitutional problem,” Kennedy said, since none of these states were told in advance that their citizens would lose their subsidized insurance if state officials opted for a federal exchange rather than creating their own.

In the past, the court has said that state officials must be given a “clear notice” of any such important rules imposed under a federal law.

Officials in 22 states have said they were not told that if they opted for a federal exchange, their residents would not receive the subsidies.

But later in the argument, Kennedy said he was equally troubled by the notion that officials of the Internal Revenue Service decided to extend the tax subsidies nationwide to qualifying buyers in every state.

That was “a drastic step,” Kennedy said, questioning whether “the IRS can make this call on its own when billions are at stake.”

Roberts, who cast the key vote to uphold the Affordable Care Act three years ago, was surprisingly quiet throughout the argument. He made only a few minor comments and did not engage in a back-and-forth exchange with the lawyers.

Washington attorney Michael Carvin, a former Reagan administration lawyer, argued that a key passage in the law made clear that tax subsidies are available only in the small number of states which established their own exchanges.

Anyone who can read “plain English” would understand that, he said. The tax section says subsidies will be offered to qualifying buyers who bought insurance in an “exchange established by the state.”

But the four liberal justices disagreed, saying he was ignoring the rest of the law. Justice Stephen Breyer said one provision says the federal government may create “such exchange,” and this exchange can serve as an insurance marketplace in the state.

“So what’s the problem?” Breyer said.

Justice Elena Kagan said Carvin’s view made no sense in the context of the full law. “You would be setting up an exchange with no customers and no products” if the federally run exchanges could not sell insurance or offer subsidies, she said.

But Justices Antonin Scalia and Samuel Alito came to Carvin’s defense. The passage limiting subsidies to state exchanges “is a clear provision. You can’t rewrite it” to mean federal exchanges too, Scalia said.

During the second half of the argument, Solicitor General Donald Verrilli argued the law should be interpreted as Congress wrote it, and that means the subsidies should be available nationwide.

He did a point-by-point rebuttal of Carvin’s argument to show that Congress would not have said states were free to rely on a federal exchange, and then include provisions that barred anyone from buying insurance on that type of exchange.

If you follow Carvin’s logic, “you run into a textual brick wall,” Verrrilli said.

The most ominous moment for Verrilli came near the end when Kennedy said he was concerned by IRS officials issuing a regulation that authorized subsidies nationwide. It “seems to me very odd” that such a hugely important issue should be decided by tax regulators, he said.

In the end, Kennedy and Roberts did not tip their hand as to how they will vote. Obama’s lawyers will have to wait until late June to learn the outcome.

The challenge was once considered a legal long shot. The architects of the health law, as well as many legal experts and state officials nationwide, have widely rejected the challengers’ interpretation of the law.

But the outcome of King vs. Burwell, as the case is called, is now in doubt, as four conservative justices on the court have made no secret of their hostility toward the sweeping health law President Obama signed five years ago.

The marketplaces, a central pillar of the law, allow Americans who don’t get health benefits at work to shop online among plans that must offer basic benefits and cannot turn away customers, even if they’re sick.

Consumers making less than four times the federal poverty level – about $47,000 for a single person or $97,000 for a family of four – qualify for subsidies to offset the cost of their premiums.

Those subsidies are considered essential to the marketplaces because they allow healthy people to buy coverage, offsetting the costs of sick consumers.

If the challengers prevail, an estimated 7 million people could lose access to the insurance aid, likely causing widespread disruptions to insurance markets nationwide.

Copyright © 2015, Los Angeles Times

UPDATES

11:28 a.m.: This post was updated with details about Chief Justice Roberts.

9:44 a.m.: The post was updated to include comments from attorneys and justices during arguments.

10:13 a.m.: The post was updated to include more background about the marketplaces and the case.

Comments

Write a Reply or Comment:

Your email address will not be published.*