While the arguments in the U.S. Supreme Court were primarily about the context, the individual meaning, and the impact of the challenged words, the focus was primarily the impact that would result if the Court were to rule in the favor of the plaintiffs. Lost subsidies, additional pressure for states to build exchanges, and necessity to raise the health insurance premiums are just a couple of major things to think about. Fortunately, most of these instances show that the Justice panel is inclined toward keeping the subsidies intact and shooting down the lawsuit.
6) Why create Federal Exchange at all? – Liberal justices collectively asked what was the purpose of having a federally facilitated marketplace when the administration did not intend to provide subsidies and tax credits, and, moreover, why would health insures sell on it? The Justices believed that there were no benefits available through the federal exchange if the subsidies were removed, and trapped plaintiff advocate Michael Carvin on the statements he made in 2012, when he cited that without subsidies, health insurers will have no reason to sell their products on the exchange. The premise behind this was simple – the federal exchange was created to provide subsidies to states that did not have their own exchange.
7) Plaintiffs lost key ground in their arguments – Amid this argument of “why have a federal exchange at all,” plaintiffs lost key ground in their discussion with the panel. Plaintiffs have argued since the beginning that the Obama administration failed to see the state side of things in their rollout of the law. They did not evaluate how many states wanted to go with the ACA marketplace method, and that’s why they included the “established by the state” clause into the law. This would indirectly motivate states to establish local exchanges if they wanted to have subsidies. However, this key ground was lost in the wake of the question that why did the administration federal marketplace at all.
8) On the other hand, Justice Samuel Alito felt that the case was crystal clear – For Justice Alito, the case looked simple enough – the plaintiffs are right and the statute of the law does not allow the administration to provide Obamacare subsidies to states without exchanges. Had the administration wanted that to happen, they would have used language used in other sections of the law, such as “exchange established under the act” or “established within the state.”
9) The Chevron Doctrine could be useful here – If the ambiguity in the case is maintained, the U.S. Supreme Court might refer to the Chevron Doctrine under the 1984 case of Chevron v. State, that set the precedent that a government agency could resolve the ambiguity. However, Justice Antony Kennedy felt that having an individual agency and its director decide the future of millions of dollars of subsidies is not prudent, and that the proponents of federalism should rethink how they want to approach this. Further, if that happens now, it’s not hard to imagine that an opposition government can take the same approach to kill the subsidies in states without their own exchange.
10) Jonathan Gruber was ignored in the stream of arguments – Fortunately for the Obama administration, Jonathan Gruber, the man who defected from the Obama camp after working on the economics of the law, was ignored in the whole argument.
11) The U.S. Supreme Court ruling could be delayed in a way that helps everyone – Although the Court’s decisions are implemented immediately, there was a suggestion from Justice Samuel Alito that talked about issuing the decision in June but delaying its implementation until the end of the tax year. That way, the decision’s impact can be minimized by giving states, health insurers, and people additional time to get things in order. Insurers would be able to manage their offerings by taking the decision into account and people would be able to manage their finances in the absence of subsidies.