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LIVE BLOG: Supreme Court Hears Arguments in King v. Burwell Case

12:51pm - Gary Kushner: With that, Mr. Verrilli’s time ended, and both attorney’s made rebuttal arguments.

The Court seemed to be quite divided based on the questioning of both Mr. Carvin and Mr. Verrilli. The more conservative Justices seemed to focus on the precise language of the affected section of the ACA, while the more liberal Justices questioned both the plaintiff’s standing to bring suit and the interpretation of the ACA in its entirety, not just the one affected section. Chief Justice Roberts asked no questions, so as the swing vote in the 2012 decision upholding the constitutionality of the ACA it’s hard to predict how he’ll rule. While Justice Kennedy did ask Mr. Verrilli some pointed questions, most of his comments questioning the constitutionality of Congress coercing the states to create an Exchange or have its citizens not receive tax credits might indicate his leaning towards upholding the government’s position. Either way, based solely on today’s oral arguments (which I’ve previously said don’t necessarily indicate how a Justice might decide), I’d expect either a 7-2 ruling in favor of the government (mirroring the 2012 part of the ACA decision throwing out Congress’ ability to force states to expand Medicaid or else lose all Medicaid subsidies); a 6-3 ruling in favor of the government (with Roberts and Kennedy siding with the four more liberal Justices); or a 5-4 ruling in favor of the government (Kennedy providing the swing vote). If the plaintiffs are to prevail, it would only be on a 5-4 vote with Roberts and Kennedy siding with Scalia, Thomas, and Alito.

That’s it for today’s live blogging. Stay tuned most likely in late June for the ruling.

12:42pm - Gary Kushner: Justice Kennedy said that if the language was ambiguous, then it could raise a Chevron deference question (from a 1984 case involving the oil company), in which the courts give deference to the interpretation by an expert agency that administers the law (the IRS, in this case). Mr. Verrilli claimed that the law was clear, so there was no reason to get into the Chevron deference issue, but that if the Court disagreed, then the government should win under Chevron deference.

12:31pm - Gary Kushner: Justice Alito continued to press Mr. Verrilli on what the plaintiffs believe to be the heart of the case. Why did Congress use the phrase “Exchanges established BY the state” if it intended to include Exchanges “established FOR the state BY the federal government?” Mr. Verrilli responded that the government’s view is that it treated the phrase “by the state” as interchangeable with “for the state” in not just the section of the ACA in front of the Court now, but throughout the entirety of the Act.

12:18pm - Gary Kushner: Justice Alito suggested that the prophecies of doom should the plaintiffs win might not occur. He said that if that were the case, states that hadn’t yet set up their own Exchanges would quickly do so. Mr. Verrilli answered that was easier said than done, and that it was complicated and took months for a state to do so. Justice Alito then said the Court could solve that problem by delaying implementation of such a ruling so that states had time to get their Exchanges up and running. Justice Scalia asked if the Court’s ruling turned out to be so disastrous if the plaintiffs prevailed, “you really think Congress is just going to sit there?” Mr. Verrilli responded, “This Congress?”, and the courtroom erupted in laughter.

12:11pm - Gary Kushner: Mr. Verrilli preferred to avoid getting into the Constitutional avoidance argument, saying that Congress could not have intended to present such a choice to the states because no one seemed to know about it, including the affected states that chose not to establish their own Exchanges. When the IRS published its guidance on the tax credits, none of the states submitted comments mentioning any concern about their residents losing subsidies if HHS set up the Exchange instead of the state.

12:08pm - Gary Kushner: Justice Kennedy jumped in again to raise his concern about coercing states. “If a state’s failure to establish an Exchange triggered such a severe penalty—denying them insurance subsidies other Americans would get—then refusing to participate was not a rational choice for a state to make.”

Justice Kennedy then went on to say that “that could trigger what the court calls the doctrine of ‘Constitituional avoidance’.” That means a reading of a statute in a plausible, but not the most persuasive way to avoid finding it unconstitutional.

12:03pm - Gary Kushner: Justice Alito asked Mr. Verrilli, the government’s attorney as Solicitor General, if as Justice Kennedy suggested it might be unconstitutional coercion of the states by the federal government. Mr. Verrilli responded that it was a “novel question,” and that his role as Solicitor General was to defend statutes against constitutional challenges.

Many commentators have remarked prior to today’s oral arguments that King v Burwell wasn’t a constitutional case but rather a statutory interpretation one.

12:00pm - Gary Kushner: Questions from the more conservative Justices of Mr. Verrilli center around what the “plain meaning” of the language in the affected section of the ACA. Justice Scalia said that if a statute has a plain meaning, “it means what it means.” He went on to say “it can’t be the rule” that a court’s job is to “twist” words of a statute for them to make sense.

This is an interesting argument, since in case after case the more conservative Justices, including Scalia, have said that the courts must look at the entire context of a law and not just individual sentences.

11:47am - Gary Kushner: The Solicitor General, Donald Verrilli is now being asked questions, and the focus is turning back to whether the plaintiffs have standing to bring suit. Mr. Verrilli said that the government previously raised a question about standing in regard to two of the four plaintiffs, but hadn’t challenged the other two. The key question, he said, is “whether any of them is liable for a tax penalty for not carrying insurance.” This seems to indicate that the government isn’t pursuing the lack of standing issue (although it might get such a ruling) because it wants to outright win a decision that the IRS was within its authority to issue the regulation providing tax credits to lower-income individuals in all states, not just those that chose to implement its own Exchanges.

11:39am - Gary Kushner: Discussion and questions from the Justices are now focusing on whether the location of the subsidy language in the ACA made sense if Congress meant to pressure states to establish their own Exchanges. Justice Kagan suggested it didn’t, while Justice Alito suggested it did.

11:31am - Gary Kushner: Justice Ginsburg asks the challenger’s attorney that if the nationwide subsidies are struck down, wouldn’t there be disastrous consequences for states that don’t create their own Exchanges? When Mr. Carvin said there would still be benefits to the federal insurance Exchanges, even without the availability of subsidies, Justice Ginsburg questioned what those would be. “What customers would buy on the federal Exchange and what insurance companies would sell on it?”, she asked. No answer.

11:25am - Gary Kushner: Justice Kennedy pressed the challenger’s attorney, Mr. Carvin, multiple times about whether the challenger’s reading of the provision of where tax credits are only available “in Exchanges established by the state” wouldn’t be problematic after the Supreme Court struck down the Medicaid expansion provisions of the ACA in 2012. There, the Supreme Court struck down the ACA’s planned expansion of Medicaid, saying Congress put too much pressure on the states to accept the law’s expansion plans to cover more lower-income individuals. In essence, Justice Kennedy is asking if the 2012 ruling wouldn’t also apply here, where if a state didn’t establish an Exchange, Congress would also be unconstitutionally coercive by denying federal tax credits.

11:21am - Gary Kushner: Questions from both “conservative” and “liberal” Justices seem to be focusing on Justice Kennedy’s questioning of the constitutional consequences of the challenger’s interpretation of the ACA if they were to prevail. While again questioning during oral arguments at the Supreme Court don’t indicate how a Justice will ultimately decide, it often is an indicator at least of their initial thinking.

11:16am - Gary Kushner: This morning’s oral arguments are running much longer than expected. Chief Justice Roberts gave the challenger’s attorney Mr. Carvin more time to make his arguments. Solicitor General Donald Verrilli just began his arguments around 10:50am ET.

11:01am - Gary Kushner: Justices Kagan, Breyer, and Sotomayor (all considered in the “more liberal” camp) continue to pepper the challenger’s lawyer, with Justice Sotomayor asking if the states had to choose between establishing their own Exchange or sending their state insurance markets into a “death spiral” because there were no tax credits for lower-income healthy people to buy insurance. She asked “Tell me how that is not coercive in an unconstitutional way.”

10:41am - Gary Kushner: The Justices now are exploring the standing issue with plaintiff’s counsel. Of the four plaintiffs, two are military veterans and may be eligible for VA benefits (and thus precluded from getting subsidies on Virginia’s federally-run health care exchange). One plaintiff listed a short-term motel as her legal residence (and is no longer there), and the Justices are questioning whether she even is a resident of Virginia. All told, the depth of this questioning might provide cover for the Justices if they choose to not decide this case since by our Constitution all parties must have standing (that is, have suffered some direct harm from the law) in order to bring suit.

10:38am - Gary Kushner: And there you have it. Just as the challenger’s attorney Michael Carvin began his arguments, Justice Ruth Bader Ginsburg interrupted (as all Justices do in oral arguments) to ask about the plaintiff’s standing.

10:32am - Gary Kushner: The Court just began oral arguments in King v Burwell. While the government’s briefs didn’t mention the issue of whether the four plaintiffs even have standing to bring the case, it’s possible that one or more Justices might ask about that issue. It’s how the Court got out of dealing with the California same-sex marriage case, and could give the Court here an opportunity to bow out without stirring the political waters (if that’s what they’d like to do).

Posted on March 04, 2015 by GARY B. KUSHNER, SPHR, CBP, PRESIDENT AND CEO

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