Will concern for states’ rights win out in subsidies battle? Today’s argument in Plain English

After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg all seemed like solid votes for the federal government, defending the subsidies, while the challengers could clearly count on the votes of Justices Antonin Scalia and Samuel Alito. Chief Justice John Roberts – who three years ago joined the Court’s more liberal Justices to uphold another provision of the Affordable Care Act, requiring everyone to buy health insurance or pay a penalty (it’s a tax!) – kept his cards close to his chest, asking only a few questions that gave no real hint as to how he might vote. But even if it ultimately doesn’t get the Chief Justice’s vote, the government could still win as long as it can pick up just one more vote. And that seemed like at least a possibility, because Justice Anthony Kennedy asked several questions which suggested that he might be leaning more toward the government than the challengers. Let’s talk about today’s argument in Plain English.

First up this morning was attorney Michael Carvin. As I explained in my preview of the case, Carvin’s four clients receive subsidies to help pay for their health insurance. But they argue that they aren’t actually eligible for the subsidies because the part of the Affordable Care Act which explains how the IRS should determine the amount of their subsidies refers to an exchange “established by the State.” And that, they contend, means that when a state – like their home state of Virginia – declines to set up its own exchange, leaving the federal government to step in, the subsidies are not available for the residents of that state.

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