The U.S. Supreme Court will be announcing its decision on King v. Burwell in late June, and there are some rumblings that the decision might be delayed. For a decision that influences health plans across the country, affects 34 states without health exchanges, and burdens millions of people in affected states with a renewed health coverage challenges in the absence of subsidies, this delay in decision could probably be a bigger challenge than the decision itself. While it is still not clear which way the wind would blow, the discussions and arguments presented to the court on March 4 gave clues to how the case might turn out.
Some states have already started thinking about their contingency plan, and with powerful healthcare technology that overcomes the perennial challenges of traditional state exchanges, a solution might be possible. However, it’s imperative to know how this is going to shape up. Here are 11 instances from Supreme Court discussions that give a glimpse into how the panel of judges might take this ahead.
1) Judges were concerned about the Standing of the Plaintiffs – When the arguments were being presented, the starting concern of Judges was the Standing of Plaintiffs. Justice Ruth Ginsburg picked up a recent news mention that insinuated that the Plaintiffs might not have the right to file this suit because some of them had access to other insurance, and this very access challenges their standing in the case. While Plaintiff attorney Michael Carvin assured the Court that at least one plaintiff had standing, the administration suggested that the Panel might want to recheck that part.
2) Justices Interpreted the Contested Four Words Themselves – Since the whole argument is about those four words “established by the state,”,Justice Stephen Beyer interpreted these words to show Michael Carvin that they have treated these words too narrowly while filing this suit. Stephen Beyer then explained that the idea was to have a federally operated exchange that functioned as a close equivalent of a state operated exchange to provide tax credits to people in states that did not build their own exchange. It was clear what the law was talking about, and this misconstrued interpretation was not helping the system in any way.
3) Justice Elena Kagan Reinforced the Idea of Interpretation of Text as a Whole – In a similar fashion, Justice Kagan suggested that the plaintiffs should reevaluate their argument by viewing those words in context of the entire law, and not in isolation. The federal exchange was a fallback mechanism for those states which did not establish their own exchange, and that’s what the entire law suggests. Isolating a section of text to build an argument that refutes the meaning of the law as a whole was not making the cut for Justice Elena Kagan.
4) Federalism Ruled the Roost at the Arguments – Citing unconstitutional actions that might result from the suit, Justice Anthony Kennedy clearly demonstrated that it would be wrong if the Courts used the plaintiff’s argument of verbiage in the law and ignored the complete picture of the subsidies. With so much at stake and so little time to curb the damage that might result, it would be entirely wrong to deliver a decision that unconstitutionally coerces states to build an exchange to safeguard their health insurance subsidies. The idea was to support the law and the federal-state exchange relationship that was originally suggested by ACA.
5) Intention vs Execution turned out to be a major problem – The argument of federalism supports that the Obama administration always intended to have federal exchanges as a fallback mechanism for states which did not establish their own exchange. However, Justice Scalia was more concerned with the execution during the writing of the statute. Justice Scalia said that this might not be the intended statute, but it is definitely the statute that was delivered in written, and for that, he was in favor of slamming the subsidies. Scalia also mentioned that since the statute was rushed, it was never properly evaluated, and that this should go back to the Congress for rework if they wish to avoid the consequences resulting from an absence of subsidies in the market. It was very clear that Justice Scalia was in favor of the plaintiffs.
In the next part of this series, I will cover the remaining instances that will give a closer look at how King v. Burwell might end for the involved parties.