It may not be until June to know the outcome of the Supreme Court’s decision on Obamacare or the Affordable Care Act. Having survived a repeal attack in 2012, the law is threatened again with the King V. Burwell lawsuit challenging the legality of subsidies.
Michael Carvin, the lawyer who challenged the law in 2012 and was unsuccessful is back again this time waging his case on four little words “established by the states.”
To understand his tact this time around is best simplified by going back to the very beginning of the enactment of the law and how these troubling words were included in the process.
The key word in this process is “subsidies” and the requirement that everyone must buy some form of health insurance, and if they couldn’t afford it they could get help from the federal government subsidies assistance program.
Much of the ACA plan was dependent on the state’s setting up their own insurance exchange programs, but 36 states and mostly Republican governors reneged thereby forcing needy applicants to find relief through the government subsidies to pay for the monthly bill.
Last week, Carvin, the lead plaintiff in the case, may have been trapped by the brief he filed three years ago on the constitutionality of Obamacare. His current argument is that Obamacare should be interpreted to deny people receiving tax credits in states without marketplace exchanges. Several of the Justices raised some concerns about the impact of this measure.
Without the government subsidies millions—some 7.5 million according to one report—will not be able to pay for insurance. Consequently, if healthy consumers drop out of the program the revenues would shrink forcing an increase in premiums. In other words, the higher premiums will eliminate the customers needed to pay for the insurance of the needy, and raising the premiums even more.
Justice Anthony Kennedy, the usual swing vote between the liberal and conservative wings of the Court, was particularly concerned about Carvin’s strategy since he supported Carvin’s argument in 2012, along with dissenting Justices Scalia, Thomas, and Alito. Chief Justice Roberts entered the decisive vote to assure the act.
What bothered Kennedy was that in 2012 Carvin argued that the tax credits are essential to making Obamacare work and now he appears to be arguing against them.
Carvin tried to set aside the past argument suggesting that consumers could still buy from the exchanges and would not altogether stop participating in the plan.
What it boils down to is the extent to which the justices will vote along partisan lines as they did before with the Chief Justice delivering the key vote, or that Kennedy’s swing vote will veer to the left rather than the right. All the other justices will probably vote as they did in 2012.