Will these nine folks deprive 10 million people of health insurance?
Wednesday's the day—the Supreme Court hears oral argument Wednesday morning in the King v. Burwell case, which could decide whether nearly 10 million Americans lose their health insurance.
The specific issues in the case have been discussed at length, including by me: King v. Burwell: Interpreting the Affordable Care Act; King v. Burwell: Chevron deference and King v. Burwell: Constitutional Avoidance.
The nickel version is this: does a tax provision included in the ACA prohibit tax credit subsidies on federal exchanges because the language used states that such tax credits are for "an Exchange established by the State under 1311." As I explained in the three linked posts, I find the challengers' argument not only unpersuasive, but borderline frivolous. But what I find and what the conservative five find is almost never the same.
So this post is intended to assist in "reading the tea leaves" from the oral argument and what to look for in terms of clues of which way the votes might go. Fortunately for all of us, one of our premier "Courtologists," Adam Bonin, will be providing a recap after the argument.
Below the fold you will find my listicle of things to watch for in Wednesday's oral argument.
(1) Who's on first? The challengers, as the petitioners to the court, will argue first. Generally in these exercises, we will see proponents of what result or point of view basically argues with other justices who disagree with them through the questioning of counsel. For Petitioners' counsel, the expectation would be that he will be peppered with questions from the Notorious RBG, Justice Ruth Bader Ginsburg, and from Justices Sotomayor and Breyer. Justice Kagan will likely also be aggressive in her questioning though her recent opinion in Yates might give some pause. What will be interesting will be if there is any significant questioning from Chief Justice Roberts, Justice Kennedy and, perhaps surprisingly Justice Alito (again based on his recent concurrence in Yates).
If we hear a lot from Roberts, Kennedy and Alito during the Petitioners' counsel's presentation, that would be a good sign for the government in my view.
Why, you might ask, do I not include Justices Scalia and Thomas in this? And given Justice Scalia's opinions and writings on statutory interpretation, your question would be well placed. But I have seen Scalia in action and nothing he has written in the past will have any bearing on his vote in this case. He is a sure no against the government, as is Justice Thomas, who doesn't ask questions anyway.
(2) What are the questions about? The Democratic appointees on the Court will no doubt run the gamut of subjects to query on. The fact is there are so many problems with the challengers' case that you could have three hours of questioning to get to all of it. But will they focus on those arguments they believe will find more sympathy with some of the conservative justices? And will some conservative justices join?
This is perhaps the most important clue we will receive, it seems to me. If we find the more liberal justices hitting on Pennhurst and Gregory/Bond and talking about avoiding the constitutional question, and then find similar questions from say justices Roberts and Kennedy (and maybe an Alito?), then I think we will have strong indications that a consensus is forming on the court to reject the challenge to the IRS rule regarding tax credit subsidies on federal exchanges.
(3) What if the conservative justices go out of their way to shoot down the federalism/constitutional avoidance arguments? This would be a terrible sign for the government. This would mean, in my mind, that there are five votes against the government and they want to discredit the federalism arguments in order to avoid hypocrisy charges. If you see Chief Justice Roberts going to pains to distinguish Pennhurst and Bond from this case, well then I'd say the government's goose is cooked.
(4) Might the case just turn on statutory construction? I suppose it could, but I'm very doubtful. You will hear a lot of discussion of the canons of statutory interpretation and Justice Scalia will be invoked by the more liberal justices, which will no doubt send him off on a tear. But I think that is the white noise portion of the argument. The case won't be decided on that.
(5) What about Chevron deference? After all, that's what the Fourth Circuit rested its decision on? This is true, and yet, I just don't see Chevron deference as the argument that is going to sway Roberts or Kennedy.
First of all, Justice Kennedy really doesn't pay much attention to doctrines and precedent that stand in the way of the result he wants. He decides the result he wants and then works backward.
Roberts mouths pieties, but he's as political (as opposed to ideological) as any justice since Rehnquist. I think Roberts is probably aware of the political problems striking down the IRS rule creates for Republicans (not to mention the health insurance industry). It's because of this that I think Roberts is the most likely candidate to grasp for a safe conservative perch to reach the result he wants (which I think could very well be upholding the IRS rule). Those perches are Pennhurst, Bond and constitutional avoidance. Moreover, that rationale might bring Alito and Kennedy along.
And the final question (6) Will any justice bring up Jon Gruber and who will it be? I think the answer is yes, and it will be Justice "Cornhusker Kickback" Scalia. Just because. I'm at a coin flip on this one. Let's see how I feel after oral argument.
Remember to read Adam Bonin's recap. It's a can't miss.