By Todd Ruger, CQ Roll Call
March 4, 2015 -- The Supreme Court appeared divided along expected lines during almost 90 minutes of oral arguments over the legal challenge threatening the health care law, with only a few clues as to how justices might ultimately rule this summer.
The clearest hints came from Justice Anthony M. Kennedy, who is thought to be a swing vote in play in the case. He repeatedly expressed concerns that the challengers' reading of the law could cause constitutional problems by violating states' rights.
The challengers' argument focuses on a six-word phase tucked in section 36(B) of the law. That section authorizes health insurance subsidies for low- and middle-income residents enrolled in "an Exchange established by the State." Challengers say that an Internal Revenue Service rule improperly interpreted the statute to allow subsidies on federal exchanges.
Cassie Boyle, 8, and her sister Helena Roberts, 11, of Pittsburgh, hold a picture of their father, Ray Roberts, and grandmother, Hannah Brown, at a rally outside the court.
Kennedy several times asked questions about whether Congress would be coercing the states to create exchanges if the subsidies are only for residents in states that created them.
"The states are being told to either create an exchange or we'll send your insurance market into a death spiral," Kennedy said. "It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument."
Chief Justice John G. Roberts Jr., the key vote in the 5–4 ruling that upheld the health care overhaul law in 2012, offered almost no clues to his thinking on the case. Roberts asked no questions about the issues until near the end, when he wondered whether, if the IRS rule interprets the statute, "would that indicate a subsequent administration could change that interpretation?"
The remaining justices appearing divided along expected ideological lines in the politically charged case with the highest of stakes. Justices Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor asked pointed questions of the challengers, while Justices Samuel A. Alito Jr. and Antonin Scalia challenged the government's points.
If the justices rule against the government in King v. Burwell, the president could see his main legislative accomplishment rendered unworkable without a fix from the administration or Congress and leave millions unable to afford health insurance.
Solicitor General Donald Verrilli Jr. focused much of his argument on the states' decisions about whether to create their own exchanges. The states made decisions about whether to create insurance marketplaces but did not even consider that residents wouldn't get subsidies, he said.
"If that was really the plan, then the consequence for the states would be in neon lights in this statute," Verrilli told the justices. "You would want to make absolutely sure that every state got the message. But instead what you have is a sub clause in Section 36(B)."
Scalia and Alito were the most vocal opponents of the government's position. Scalia questioned the idea that Congress wouldn't do anything to fix the statute if the Supreme Court ruled for the challengers.
"You really think Congress is just going to sit there while all of these disastrous consequences ensue?" Scalia asked.
"Well, this Congress, your honor," Verrilli said to laughter in the courtroom. "You know, I mean, theoretically, of course, theoretically they could."
"I don't care what Congress you're talking about," Scalia replied. "If the consequences are as disastrous as you say, so many million people without insurance and whatnot, yes, I think this Congress would act."
Alito pitched two reasons why a ruling against the health care law would not result in as much harm as predicted.
"It's not too late for a state to establish an exchange if we were to adopt petitioners' interpretation of the statute. So going forward, there would be no harm," Alito said.
And he said the court could delay its mandate in the case until the end of this tax year if the justices do side with the challengers.
Kagan was the liveliest questioner. She asked the attorney for the challengers, Michael Carvin, why lawmakers would have put such an important part of the law outside the main portion of the legislation.
"There's at least a presumption, as we interpret statutes, that Congress does not mean to impose heavy burdens and draconian choices on states unless it says so awfully clearly," Kagan told Carvin. "I mean, this took a year and a half for anybody to even notice this language."
Carvin pointed out that the government had three years to implement the laws.
"And no one thought the states were going to have to make a decision overnight," Carvin said. "If the IRS had done its job, every state would have been fully informed of the consequences because presumably they've read 36(B), and then they would make an intelligent decision well in advance of the 2013 deadline."
