Questions vs. Quiet: Reading the Swing Votes in King v. Burwell

March 4, 2015

Topics: Health Care Reform, Legal Issues, Exchanges

by Joshua Zeitlin, staff writer

The swing votes in King v. Burwell were a study in contrasts today in oral arguments before the Supreme Court.

Justice Anthony Kennedy fired questions at both sides. Meanwhile, Chief Justice John Roberts largely remained silent.

Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg all appeared to concur with the government's position that the Affordable Care Act clearly allows for subsidies to purchase coverage through either state or federal exchanges, even though the statute itself says subsidies are available only "through an exchange established by the State."

Justices Antonin Scalia and Samuel Alito seemed skeptical of the government's arguments. Justice Clarence Thomas, as is his custom, did not ask any questions, although he is widely expected to side with the plaintiffs in the case.

As a result, either Kennedy or Roberts will need to side with the government for the court to uphold subsidies for individuals to purchase coverage in states that use the federal exchange. Their decision could decide whether a projected 8.2 million more individuals in the 34 states that use the federal exchange have insurance in 2016.

Kennedy's Questions

  • States' Rights and Unconstitutional Coercion

Kennedy's questions mostly focused on whether the plaintiffs' reading of the ACA would violate states' rights. He told the plaintiffs' lawyer, Michael Carvin, that his "argument raises a serious constitutional question."

Kennedy said it might be unconstitutionally coercive for Congress to give states the choice of creating their own exchanges or having their insurance markets sent "into a death spiral" with "sky high" premiums. "It does seem to me that if [the plantiffs'] argument is correct, this is just not a rational choice for the states to make and that they're being coerced," he said.

Kennedy also raised that doctrine of "constitutional avoidance," the principle that the court should not rule on a constitutional question if a case can be decided on a different basis. U.S. Solicitor General Donald Verrilli said that if the court believes "this is a serious constitutional question," then that doctrine "becomes another very powerful reason to read the statutory text [the governments'] way."

However, Kennedy did acknowledge a point stressed by Carvin that the court should rule for the plaintiffs if the ACA's language unambiguously prohibits federal exchange subsidies, even with the constitutional question. Kennedy said, "It may well be that you're correct as to [the statute unambiguously prohibiting federal exchange subsidies], and there's nothing we can do."

  • Ambiguity Might Not Be Enough

Kennedy also called into question whether the Supreme Court could side with the government even if the ACA is ambiguous on the subsidy issue.

He noted that the Supreme Court has long given federal agencies leeway to interpret ambiguous statutes under what is known as Chevron deference. However, he asked Verrilli whether Supreme Court precedent allows IRS -- which originally interpreted the law to read that subsidies were available in both state and federal exchanges -- to make the decision about the federal exchange subsidies "one way or the other."

Verrilli said that yes, IRS could do so. However, when so many experts have assumed that the justices would assuredly rule for the government if they found the subsidy language ambiguous, Kennedy's Chevron question indicates that might not be the case.

  • Why Phrase it That Way?

Kennedy also pressed an additional point that called into question the government's reading of the subsidy provision. He asked Verrilli why Congress would have allowed for subsidies "established by the State under Section 1311" -- the section relating to state-run exchanges -- when they could have been more clear that the subsidies were to be available through state and federal exchanges. He said that "seems to me to go in the wrong direction, not the right direction, for your case."

Robert's Quiet

While Kennedy interjected more than 10 times to raise a point or ask a question, Roberts raised only a single question on the merits of the case.

Roberts inquired about Chevron, asking Verrilli whether the court deferring to IRS on the federal exchange subsidy issue "would indicate that a subsequent administration could change" the agency's interpretation.

Verrilli did not rule it out but said "a subsequent administration would need a very strong case ... that it was a reasonable judgment in view of the disruptive consequences."

The Takeaway

Ultimately, Kennedy's questions provide some insight into his thinking, but they don't provide much clarity. Meanwhile, Roberts' relative silence makes him even more of an enigma. That's particularly noteworthy considering that it was his vote that saved the ACA in 2012. What's unambiguous, then, is that Kennedy's questions and Roberts' quiet were both ... ambiguous.