The future of Obamacare could be decided on Friday, when nine justices of the Supreme Court meet in private.
The outcome of their deliberations is anybody's guess. If you support the law, that should worry you -- and make you angry.
As a court spokesperson confirmed, the justices are following their custom Friday by holding a private conference. The usual purpose of these meetings is to discuss cases that the court just heard on Wednesday, so that would mean talking about King v. Burwell -- the dispute over whether the federal government may continue to provide subsidized health insurance to people living in two-thirds of the states. The justices will sit around a table, without even their clerks present. The chief justice will speak first, and then each associate justice will have a turn, going by seniority. Then, the justices will indicate how they intend to vote, again in the same order.
Their decisions are not always final. It takes weeks for justices to write their opinions and, very occasionally, a justice will change his or her mind in that process. But more often than not, the result of the Friday conference dictates the final outcome of the case.
Lots of people have been poring over transcripts of Wednesday's oral arguments, trying to divine from key moments how the justices will vote. But clues from oral arguments can be misleading and, in this case, they are conflicting.
Justice Anthony Kennedy joined his liberal colleagues in asking pointed questions about federalism that could lead him to reject the lawsuit. Justice Samuel Alito floated the idea of a “stay” to delay the ruling’s impact, suggesting that he might be trying to assuage the anxieties of conservative justices wary of upending so many people’s health insurance. And Chief Justice Roberts said almost nothing -- which suggests, at the very least, that he was not so openly hostile to the government’s case as he was three years ago, when the court famously heard a challenge to the law’s individual mandate.
But there were also some bad omens for the law. Kennedy seemed to embrace a key argument that Obamacare critics had made about the amount of deference the court should give to federal agencies when so much money is in play. Alito’s proposal for a stay seemed like precisely the sort of political cover that Roberts might need to rule against the government. And Justice Antonin Scalia, whose past opinions made clear that justices should not read passages of laws in isolation, seemed fully prepared to do just that in order to rule against Obamacare.
By now, you’ve probably heard (here at The Huffington Post, among other places) about the high stakes of this case. Literally millions of people could lose their subsidized health insurance, in most cases forcing them to give up their coverage altogether. Real people would suffer physical harm, maybe even die, as a result; many more would endure severe financial hardship.
That doesn’t mean the court can’t take such a step -- or hasn’t before. But to find a case in modern history that produced a similarly widespread, immediate impact, you you probably have to go back to Roe v. Wade or maybe all the way back to Brown v. Board of Education. Those rulings had two qualities that a finding against Obamacare in King v. Burwell would not.
One was a level of agreement among the justices. The Roe opinion had the signature of seven, with just two in dissent; Brown was unanimous, with all nine justices in support. Roe and Brown also focused on some of the most important, most basic questions of democracy and liberty, the kind of issues that might warrant dramatic judicial intervention. Roe was about the definition of privacy, how to define the beginning of life and the ability of women to control their own bodies. Brown was about racial equality and the most fundamental right of all Americans to enjoy the same public services and have the same opportunities, regardless of skin color. Whatever you think of those decisions, you can’t deny that the debates underlying them were among the most important questions to ever come before the court.
NFIB v. Sebelius, the 2012 case challenging the individual mandate, arguably didn’t rise to this level. (I was among those who wrote as much at the time.) As both sides in that case acknowledged, a mere semantic change by the lawmakers who wrote the Affordable Care Act -- specifically, calling the mandate a “tax” rather than a “penalty” -- would clearly have rendered the law constitutional. As it happens, this very realization may have saved the law. Roberts, who reportedly changed his mind after oral arguments and wrote the majority decision, upheld Obamacare because, he said, it was a tax -- no matter what the people who wrote the law had called it.
But if the dispute in NFIB was ultimately semantic, at least it grew out of arguments that had been lurking all along in the Obamacare debate -- and touched upon a deeply held, deeply important debate between liberals and conservatives over whether government ought to have so much power over health care and how people use it.
You simply cannot say that about King v. Burwell.
Back in 2009 and 2010, while health care legislation was making its brutal journey through Congress, nobody talked about whether all states should have access to the law’s financial assistance. This is precisely what has made discerning the intent of Congress so difficult. The question just didn’t come up explicitly.
And as the people who launched this lawsuit freely admit, even they had no idea that the law’s wording might prohibit the distribution of tax credits in some cities, as they're arguing now. It came to their attention only months after enactment, when an attorney critical of the law discovered the now-controversial phrase, “established by the State.” He brought it to public attention at a conference at a conservative think tank -- convened specifically to discuss possible legal attacks on the law and in which one panelist spoke openly, and enthusiastically, that “the bastard” -- aka Obamacare -- “has to be killed as a matter of political hygiene.”
A critical legal issue in the case is the question of ambiguity. If the meaning of a statute is unclear, then, according to prevailing and widely accepted legal doctrine, judges should defer to “permissible” readings by executive agencies. Judges are also supposed to read laws in their entirety, rather than isolating key phrasing. Other sections of the law would seem to undermine the plaintiff's narrow interpretation of "established by the State": One critical passage, for example, calls upon the federal government to create exchanges and fulfill the law’s requirements when states do not act.
To date, six federal judges have found the government’s argument persuasive. Multiple elected, appointed, and career officials who looked at the law during the debate and then after enactment indicated they believed it authorized tax credits in all states. You can’t “prove” a thing like ambiguity, but those facts come as close as possible.
If the justices decide to support the King v. Burwell lawsuit, they will be issuing a decision of historic impact because of what is, at worst, unclear language -- language buried so deeply in the statute that nobody even noticed it until months after the law. What's more, they would almost certainly be making this decision on the narrowest, most partisan basis possible -- at the behest of people who openly profess a desire to undo a president's signature legislation by any means possible, and who know they cannot do so through the legislative process.
Could the court do it? Of course. But it would have profound implications for the court's legitimacy. Roberts has spoken frequently about the need to show that the court is above partisan politics. That’s probably why he voted to save the law last time. What remains to be seen is whether, given another chance, he’ll do the same.