After the
Wall Street Journal and
Mother Jones scrutiny in the past few weeks of the
plaintiff problem in
King v. Burwell, the Supreme Court case that could gut Obamacare, the traditional media is now paying more attention. Here's
USA Today weighing in, not looking just at the problem plaintiffs, but at the legal basis for the case itself, and concluding that it has some serious hurdles.
The four plaintiffs' qualifications to bring the lawsuit have been cast in doubt because of their low incomes and potential eligibility for other government benefits. At least one of the four Virginians must show that the law constitutes a burden.
The legal theory behind the complaint — that Congress intended to deny financial aid to consumers in states that use a federal health insurance exchange — has been refuted by the law's authors. Officials from 22 states told the court they were never warned of that possibility.
The assumption that the administration, Congress or the states would rescue millions of purchasers if the court strips away their federal tax credits has been discredited (in the case of Congress acting anytime soon) or disputed (by officials in several states).
"Piece after piece after piece of evidence that they have put forward to try to support their far-fetched interpretation of the statute has fallen apart as we approach oral argument," says Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center. "That's legally relevant, because it demolishes their claim that anyone thought the law works this way at the time."
That leaves the question of the day, "whether any of the atmospherics will influence the nine justices who have Obama's signature domestic policy achievement in their hands." The challengers are defiantly confident, if not downright cocky, about their prospects. Their final brief to the court, submitted Wednesday, didn't address any of the standing questions that have arisen in the past few weeks and instead focused on the premise that's been refuted by members of Congress and state officials—that Congress meant to leave millions potentially uncovered. The people behind the challenge have no problem with the fact that their case, as Robert Weiner, a former Justice Department official, says is "a political case that is part of an overall political battle raised by opponents of the Affordable Care Act." In fact, the response to the charge that they couldn't come up with better plaintiffs from one of them is to make it even more political.
"They don't want to get audited," Cannon said, "and this administration has a history of using the IRS for ideological purposes."
So it's all down to how the five conservatives on the court want to proceed, whether they're willing to prove that they really are hyperpartisans.