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theodore M I R A L D I mpa ... editor, publisher, writer
Tuesday, March 24, 2015
Did Anthony Kennedy Just Show His Hand On The Obamacare Subsidies Case?
SARAH HURTUBISE Justice Anthony Kennedy’s comments in a run-of-the-mill budget meeting Monday may have signaled how he intends to vote in this year’s biggest Obamacare lawsuit over the legality of federal premium subsidies.
In a Monday budget request before the House Appropriations Committee, Justice Anthony Kennedy, typically the swing vote on the Court, made comments that could suggest he’s leaning in favor of the plaintiffs in King v. Burwell. The question in the pivotal case is whether the text of Obamacare restricts the law’s popular premium subsidies to state-run exchanges, of which there are only 14, and bans them from the vast majority of states that use the federally-run exchange, HealthCare.gov.
The battle over the lawsuit about Obamacare subsidies currently before the Supreme Court has focused on whether anyone’s got a solution if the Court’s decision ends up skyrocketing HealthCare.gov premiums.
The administration is arguing that the language in the bill doesn’t exclude federal marketplace customers from the subsidies and seems to be trying to convince the Court that ruling otherwise would be catastrophic for the health-care law, and therefore for the Court’s image. Department of Health and Human Services secretary Sylvia Burwell has repeatedly sworn that the administration will not even have a back-up plan prepared in case they lose the case — although anonymous officials have said elsewhere that there is a contingency plan in place.
Congressional Republicans, who typically support the plaintiffs’ interpretation that subsidies are for state exchanges only, have countered that tactic by releasing their own plans in the case of a decision eliminating the federal exchange subsidies.
But it may turn out that the Court may choose to not consider the likelihood of Congress restoring the subsidies at all. While he wasn’t overtly discussing King v. Burwell, Kennedy’s comments on Monday certainly suggested that it isn’t the Court’s role to predict what a certain Congress would do in response to their cases.
“We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it.’ But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes,” Kennedy said Monday. ”That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.”
Court experts immediately grabbed onto the comments, which were in response to a question from Florida GOP Rep. Ander Crenshaw about “politically-charged issues” before the Court, as a likely reference to the furor over King v. Burwell.
Josh Blackman, an assistant professor of law at the South Texas College of Law who specializes in the Supreme Court, points out that strategy to put pressure on the Court due to Congress’s reaction even made its way into the courtroom — much to the chagrin of at least one justice. During oral arguments in the case earlier this month, Solicitor General Donald Verrilli suggested to Justice Antonin Scalia that the current Republican-controlled Congress wouldn’t come up with a fix.
JUSTICE SCALIA: Congress adjusts, enacts a statute that — that takes care of the problem. It happens all the time. Why is that not going to happen here?
GENERAL VERRILLI: Well, this Congress, Your Honor, I – I – (Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically — of course, theoretically they could.
JUSTICE SCALIA: I – I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without — without insurance and whatnot, yes, I think this Congress would act.
“It was said in a very snarky or sarcastic way,” Blackman told TheDC about Verrilli’s comments. “I was sitting in the Court and I thought that was inappropriate. I think that’s what Kennedy was referring to here.”
Kennedy made no reference to the case, and Blackman stressed that it’s impossible to know exactly what the justice was thinking. But “he seemed very much directed with how he wanted to handle that question,” Blackman said. “The fact that he said this makes me think this issue is on his mind.”
The Supreme Court’s decision in the case is expected in June.