U.S. Supreme Court Chief Justice John Roberts

U.S. Supreme Court Chief Justice John Roberts

WASHINGTON – After the U.S. Supreme Court heard arguments Wednesday on a case filed against the federal government that could effectively overturn Obamacare, reaction from the right was cautiously optimistic but wary, while reaction on the left was somewhat panicked.

But it may those on the right who should have greater cause for concern, for two reasons:

  • Justice Anthony Kennedy, the somewhat conservative justice usually considered the swing vote on a court otherwise evenly divided four-to-four, expressed reservations about whether ruling for the plaintiffs would cause “serious constitutional problems” of coercion.
  • Chief Justice John Roberts did not ask any questions on the government’s position in the case, setting off alarms for conservatives. They remember all-too-well how he shocked the world by casting the deciding vote in a 5-to-4 ruling in National Federation of Independent Businesses v. Sebelius, upholding the constitutionality of the Affordable Care Act, on June 28, 2012.

Hans von Spakovsky, senior legal fellow at the conservative think-tank the Heritage Foundation, told WND, “I think this case is a cliff hanger.”

The plaintiffs in King v. Burwell claim subsidies issued by Obamacare should be provided only by a health-care exchange “established by a state,” which is the plain wording of the law.

That would mean the federal government could not subsidize policies bought on the federally run exchange used by customers in the 36 states that didn’t set up their own exchanges.

And that would likely cause Obamacare to virtually collapse.

The Supreme Court will announce its ruling in June.

Reports from Wednesday’s oral arguments suggested that liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were sympathetic to the administration’s arguments, while conservatives Antonin Scalia, Clarence Thomas and Sam Alito appeared likely to back the petitioners in the case.

“It is pretty clear from their questioning that the four liberal justices are going to vote for the government,” said von Spakovsky. “They spent all their time in their questions trying to avoid the purely statutory text interpretation issue (which is a clear loser for the government) and drumming up hysteria about the dire consequences if they find against the government.

“I think Scalia and Alito will find against the government, but Kennedy could go either way and Roberts was keeping his cards covered, too.”

Chief Justice Roberts, who is normally an active questioner during oral arguments in big cases, was noticeably quiet on Wednesday. Gayle Trotter, a lawyer and columnist who made headlines in 2013 for her passionate defense of gun rights before the Senate Judiciary Committee, told WND that might have been a deliberate strategy by the chief justice after his prominent role in saving Obamacare in his 2012 ruling that determined the individual mandate was constitutional because of the power of Congress to levy taxes.

“Because of that and the significant pressure that has been put on by all sorts of elite academics and media folks on John Roberts that they think was successful in the first go-around of this Obamacare fight, I think he’s holding his cards very close to his chest,” Trotter said.

Trotter sees this case as a golden opportunity for a do-over for Roberts. In a Washington Times column this week, Trotter likened the second court fight over Obamacare to the flubbed oath of office Roberts rendered to Obama in 2009. She said this is obviously a much more consequential opportunity to right something Roberts clearly got wrong in 2012.

Listen to the WND/Radio America interview with Gayle Trotter:

Critically, the plaintiffs argue that the wording of the law requiring subsides to go through only those exchanges “established by a state” was not an oversight. They say it was designed to force states to set up their own exchanges.

When they did not, critics say, the administration simply ignored the law by having the IRS issue subsidies to those in the federal exchange.

Justice Kennedy was an active questioner. His concern was that if the plaintiff’s interpretation of the law was correct, that federal subsidies should be available only in the 16 states (and the District of Columbia) that established their own insurance exchanges, that would amount to a potentially unconstitutional coercion upon the other states to set up their own exchanges.

That was actually the intent of the law, according to Obamacare consultant and MIT economist Jonathan Gruber, who said in January of 2012, that tax-credit subsidies available for health insurance were only available in states that set up their own exchanges.

Emphasizing that was meant to coerce states to set up exchanges, Gruber said, “I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

Asked to explain that when his comments became publicly known, Gruber instead said, “I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake.”

Von Spakovsky told WND, “I was actually surprised that Kennedy took seriously the arguments made by the other justices such as Sotomayor about ‘coercion’ if they interpret the state exchange provision the way the plaintiffs were urging them to.”

Such nuanced arguments were not typical of reactions on the left.

A Baltimore Sun op-ed titled, “Absurdity at the heart of the latest Obamacare challenge” claimed conservatives were “trying to kill it on a technicality.”

“The government’s case was stronger, and probing questions by the justices underscored how non-sensical (sic) and even potentially unconstitutional the statute would be if the plaintiffs’ interpretation held,” opined the paper.

Writing for the Huffington Post, Dr. Georges C. Benjamin of the American Public Health Association called health care “a fundamental right” and said, “A ruling invalidating these tax credits would be catastrophic to the American public and the American health care system alike.”

He added, “Those of us in the public health community understand the enormous stakes in this case, and we understand that the clear text, purpose, and history of the Affordable Care Act require a ruling for the administration. A ruling for the administration is also a ruling for our health.”

Likewise, NPR warned, “A ruling for the plaintiffs would be a mortal blow to the president’s signature legislative achievement.”

The website Gawker called King v. Burwell, “the latest challenge to the Affordable Care Act cooked up by radical libertarians.”

Gawker also predicted, “If the challenge wins, the results would be catastrophic, a majority of the state’s health care markets would be turned into chaos, with plenty of needless suffering and death as a result.”

According to the leftist website, “[T]he argument that subsidies are therefore only available on the state-established exchanges – and not on the federal exchange, which is not technically ‘an Exchange established by the State'” is essentially a drafting error, because (despite what Gruber maintained), “It was universally assumed by both supporters and opponents of legislation at the time that the subsidies would be available on both kinds of exchanges.”

Gawker cited the “Moops” theory first put forth in Salon that the plaintiff’s argument was analogous to one in a Seinfeld episode that claimed, “Bubble Boy shouldn’t be awarded his Trivial Pursuit win because the card says Moops, not Moors, invaded Spain.”

However, it was no drafting error, according to former federal prosecutor, contributing editor to National Review and frequent Fox News commentator Andrew McCarthy.

Last month, he told WND, “The only thing that matters is what the statute says. The statute is very clear: The subsidies/mandates regime only applies to exchanges established by the states, and this was explicitly done in hopes of pressuring the states to establish exchanges – it was not a drafting error.”

The reason so many leftists argue an adverse ruling for the government would be “catastrophic” is an estimated 8 million Obamacare subscribers would lose their policies.

Of course, they would then be free to merely shop for a new plan, but many have argued that congressional Republicans should reach consensus on a replacement plan for Obamacare before the Supreme Court rules in June, particularly one that guarantees the right to shop for insurance across state lines and includes protection for those with pre-existing conditions.

Many observers have maintained that having such a replacement plan in place might make justices more inclined to rule against the government because it would allow the court to have confidence it was following the will of Congress and the public.

When WND asked von Spakovsky if he thought that was the case, he replied, “I believe there are already alternatives that have been proposed, so that should not be a factor for the justices. From a legal standpoint, whether or not there is a replacement plan standing by has nothing to do with the case, although it may influence their thinking.”

Sen. James Lankford, R-Okla., turned that argument back on the administration, saying, “It’s also extremely disappointing that the Obama administration has admitted that they have no contingency plan to help families who could be affected by the King v. Burwell decision. Senate Republicans stand ready with health care reform alternatives that will eliminate Obamacare’s problems and improve our health care system.”

Lankford also issued a scathing indictment of the “drafting error” argument, noting, “The administration case’s legal argument encourages a new method of reading any law in America: the text is not important, only the administration’s interpretation of the text matters.”

He added, “This King v. Burwell case is about much more than one poorly written health care law; it is about how and who interprets any law in the future. ”

Jay Sekulow, chief counsel of the American Center for Law and Justice, or ACLJ, which filed a friend-of-the-court brief supporting the plaintiffs, said, “The law must be applied as written. That is vital to democracy. And if the law as written doesn’t work, it must be corrected through a democratic process, not regulatory fiat.”

“This administration’s make-it-up-as-we-go approach to implementing Obamacare is not only wrong but unconstitutional.

“The implementation of these badly flawed IRS regulations produces a couple of very disturbing results: It makes it impossible to accomplish Obamacare’s goal of encouraging state promotion and, secondly, it promotes the federalization of this nation’s health care in direct contravention of Congress’ intent.

“We’re hopeful the high court moves to correct this unconstitutional catastrophe and uphold the separation of powers.”

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