Supreme Court Justice Anthony Kennedy has Obamacare opponents worried he’ll uphold the law’s health insurance subsidies.
But the man arguing their case has a different spin.
“I think people are misinterpreting it,” attorney Mike Carvin told the Washington Examiner on Wednesday.
Carvin was referring to Kennedy’s comments during the oral arguments last week in King v. Burwell — a case that has huge implications for President Obama’s healthcare law. If the justices agree with Carvin that the law’s insurance subsidies are illegal in 37 states, that would suddenly make insurance unaffordable for millions of low-income Americans who have recently bought plans.
The case centers on a few lines in the Affordable Care Act. The Obama administration says it allows subsides in all the states including those relying on healthcare.gov. The challengers say it limits subsidies to the few states that have set up their own marketplaces.
Of all the justices, it’s perhaps hardest to predict how Kennedy will rule. While Kennedy would have struck the entire healthcare law in the last big Obamacare challenge in 2012, he indicated during the King arguments that he has constitutional concerns with the challengers’ case.
“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,” Kennedy told Carvin at the March 4 oral arguments.
That statement quickly sparked widespread speculation that Kennedy may well side with the court’s four liberal justices — Ginsburg, Sotomayor, Kagan and Breyer — and swing the court toward a decision upholding the subsidies.
But Carvin is hopeful that Kennedy’s constitutional concerns could instead prompt him to strike the subsidies, or at least allow the issue to keep simmering.
His argument goes like this. In the 2012 case challenging the constitutionality of the healthcare law, Kennedy sided with the conservative justices who said it’s coercive for the federal government to require states to expand their Medicaid programs and therefore wanted that entire part of the law to be struck.
In that decision, Kennedy showed he didn’t want to essentially rewrite the healthcare law to explicitly allow states to either reject or accept Medicaid expansion (as the court’s majority ultimately ruled). Instead, he just wanted to strike the whole thing.
Similarly, in the King case, Kennedy may say it’s coercive for the federal government to hinge the subsidies on states building their own exchanges. But he may be unwilling to assume subsidies should go to all the states since the law doesn’t explicitly say that.
In that case, he could temporarily allow the subsidies to stand, but open the door for a state to launch a coercion lawsuit the court could ultimately use to block them in the future.
“By parallel logic, if [Kennedy] rules that conditioning the subsidies on states establishing the exchanges is unduly onerous, the solution to that is to cut off the subsidies, not to extend them for all 50 states,” Carvin said.
Other conservative legal experts have laid out the same argument, including Randy Barnett, a Georgetown University law professor. Barnett said he still believes that overall, Kennedy’s comments didn’t bode well for Obamacare opponents. But he thinks that Kennedy’s 2012 ruling could carry some hints as to how he’ll rule this time around.
Kennedy “didn’t try to split the baby, he just said the whole thing had to go down,” Barnett said.
