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What Experts are Saying about the King v. Burwell Hearing

Once again, the future of the Affordable Care Act (ACA) is being decided by the U.S. Supreme Court. And with oral arguments taking place on Wednesday, once again supporters and opponents of the law are listening closely to the interpretations of various health and legal experts who are parsing the justices’ every word.

The case is focused on a four-word phrase, “established by the state,” that will decide whether subsidies should continue to be available nationwide or if they should only be available in states that set up their own exchanges. With the expectation that the court’s four liberal justices will side with the government and the court’s three most conservative members will side with the challengers, all eyes were on Justice Anthony Kennedy and Chief Justice John Roberts on March 4 as the two are anticipated to be the deciding votes. Early reports indicated that Justice Kennedy consistently expressed concern about the harm inflicted on states were the government to lose the case. 

Reuters reported that Justice Kennedy noted how eliminating the subsidies would unlawfully pressure states to create their own exchanges and cause an insurance “death spiral.” The news outlet also noted that Chief Justice Roberts, in one of his few remarks during the hearing, said that if the court were to find the law ambiguous it could defer to the government’s interpretation. That would mean the ACA would be safe for now but a future administration would have the ability to reverse course down the road.

Writing for the American Hospital Association’s AHA Stat blog, legal expert Sean Marotta wrote that Justice Kennedy’s concerns for states’ rights, coupled with Chief Justice Roberts’ lack of questioning, could be interpreted as hopeful signs for supporters of the ACA. However, he reminded readers that outcomes are extremely difficult to predict based on interpretations of oral arguments alone.

In its live blog of the hearing, Healthcare Finance News concluded that the key takeaway was Justice Kennedy’s focus on the idea that a ruling in favor of the challengers would mean states are “more or less forced to ‘adopt’ or ‘endorse’ the ACA system to avoid unmanageable consequences in their states.” According to the blog, that led Justice Kennedy to conclude that the law was not written with that intention and should not be interpreted as such. 

Modern Healthcare also focused on Justice Kennedy’s comments and noted that one particular statement directed to the challengers, “It seems to me that under your argument . . . there’s a serious constitutional problem,” bodes well for the administration. However, it also cited the opinion of Michael Cannon, director of health policy studies for the libertarian Cato Institute, who believed that Justice Kennedy’s skepticism about granting the IRS the power to interpret the law was a good sign for the challengers.

It is believed that the justices will hold a preliminary vote at the end of this week with a decision expected in June.

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