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Health Care Law Subsidies Not So Easy To Undermine In Supreme Court

March 4, 2015

I am looking forward to the analysis of Marcia Coyle this evening on the NewsHour as it relates to the matter of the constitutionality of subsidies for those attaining health care coverage through the Affordable Care Act.  But based on early reporting it seems that those who are itching to undermine the law may find they do not have a wining hand.  (I have argued the court will defer to the intent of congress.)  It should not noted that the four liberals on the bench need Justice Kennedy, and that today Chief  Justice Roberts said hardly a word.  This all makes for a great case to follow.

A divided Supreme Court sparred Wednesday over a centerpiece of the Affordable Care Act, with swing Justice Anthony Kennedy voicing concerns about potential constitutional consequences of a ruling that strikes down the availability of nationwide insurance subsidies.

Justice Kennedy early in oral arguments said he saw “a serious constitutional” question with the challenger’s argument that states were supposed to choose between setting up their own exchanges and forfeiting the tax credits. His concern has a direct link with the 2012 health-care ruling, in which the justices voted 7-2 that Congress couldn’t put excessive financial pressure on the states to implement a portion of the law that expanded Medicaid.

Justice Kennedy raised the issue with Michael Carvin, the challengers’ attorney, and with U.S. Solicitor General Donald Verrilli, who was defending the law for the Obama administration.

The justices in King v. Burwell are considering a legal challenge to the tax credits in the 2010 health law that is the defining domestic achievement for President Barack Obama. The court is deciding whether language in the law allows the credits to go to lower- and middle-income individuals across the country or is limited to people in states currently operating health-insurance exchanges. The distinction is important because only 13 states and the District of Columbia currently operate an exchange, while more than 30 states are relying on the federal government’s HealthCare.gov system.

The challengers argue the words “established by the state,” contained in the lengthy statute, limits distribution of the tax subsidies.

Mr. Carvin said Congress routinely provides financial incentives for states to implement federal programs, and he suggested there was nothing improper about Congress dangling the subsidies as a carrot for the states to set up their own insurance exchanges. If that approach is unconstitutional, then many provisions in U.S. law also are unlawful, he said.

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