SO - just to be clear - the content here is not mine - it is directly from SCOTUS Blog.
I advise everyone here to read the blog there, and to follow them on Twitter if for no other reason than to laugh at the people think that SCOTUS actually live tweets arguments and opinions during cases.
Also took seom stuff from the WSJ.
ACA updates from the blog are below.
Mid-argument updates: King v. Burwell (Last update: 10:59)
First update: Liberals lead line in questioning of Petitioner in King, but Kennedy asks important question about disrupting federal state balance.
Counsel for the petitioners – who are seeking to invalidate subsidies in states with federal exchanges – faced tough questioning from the more liberal Justices in the first 20 minutes of today’s argument. In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it. Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion. While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.
Second update: Perceptive hypothetical from Justice Kagan forces petitioners to focus on context, not just text.
Petitioners in King focus very heavily on the text, which they say only provides subsidies to states that set up their own exchanges under the literal terms. After Justice Ginsburg asked about standing, Justice Breyer opened the merits questioning whether that’s even true based on the way the statute defines exchanges (namely, as state-created entities) and then directs the federal government to establish “such an exchange” when the state fails to do so. But much of the early questioning was dominated by a real-life hypothetical from Justice Kagan, suggesting that petitioner’s reading does not accord with everyday usage.
She offered (something like) the following example: Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A’s memo, and then I tell law clerk C to write such memo if law clerk A is too busy. And imagine that happens – law clerk A is too busy, so law clerk C writes it. Should law clerk B edit it? The answer seemed obvious: of course, and Justice Kagan all but told petitioner’s counsel (and her clerks) that they would be fired if they didn’t do their job under those circumstances. In response, petitioner’s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance. But that seemed to play into Justice Kagan’s hand, who made clear that this was her point – that in understanding this text, the context obviously mattered.
That turn to context seemed unprofitable initially for petitioners. Many Justices, including Justice Breyer, Justice Sotomayor, and Justice Kennedy expressed skepticism that the statute would function as intended, in a reasonable fashion, and even constitutionally if petitioners’ reading were accepted.
Third update: Kennedy raises a critical question for the petitioners.
In the midst of a discussion of context and the consequences of petitioners’ reading, Justice Kennedy raised a question that will surely receive a lot of scrutiny in the coming discussion of the case. He pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges. That’s true not just for the headline reason covered by this case – that their citizens would be denied benefits – but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular state. For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein. Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.
Update:
Continued updates on Oral Arguments in King v. Burwell
I stepped out of the room approximately 5 minutes into the Solicitor General’s argument. Here’s what happened since Eric’s last update.
The Justices focused their questioning for the remainder of Michael Carvin’s argument for the petitioners on whether his interpretation of the statute had put an “elephant in a mousehole,” i.e., whether it would have made any sense for Congress to put such an important condition for receiving subsidies inside a technical formula for calculating the amount of the subsidy. Justices Ginsburg and Kagan focused on this point. Carvin parried that if one was looking for information about who should get a tax credit (the form of the subsidy at issue), then the natural place to look would be in the tax code, and not in the title of the U.S. code relating to public health and exchanges. That didn’t sit well with Justice Kagan, who tested the argument against Carvin’s other claim, which is that Congress was trying to create an incentive for states; in Justice Kagan’s view, the states would look to the provisions relating to establishing exchanges, and not to the technical coverage formula, to decide whether to set one up. Thus, if Congress was trying to create incentives for states, it would put those incentives in the place where they would look. Justice Alito jumped in to help Carvin, saying that if a state was looking for information about tax credits, it would look to the tax code.
Carvin’s argument closed with a long question from Justice Breyer about the supposed anomalies that his interpretation would create with the statute. I’ll discuss those in more detail in an update shortly.
When the Solicitor General took the lectern, he elected to begin by talking about standing, which had been raised by Justice Ginsburg. The short version of his point is that as long as one of the plaintiffs had to pay a tax penalty in 2014, one of the plaintiffs would have standing. The SG explained that the government simply does not know whether that is true because there has been no fact-finding in the case. He further stated that as long as the other side does not represent that their clients lack standing, he would assume that they do in fact have it, and proceed to the merits. There was a little bit of skeptical questioning about this: the Chief Justice and Justice Alito both suggested that standing should not be adjudicated at this stage. And the SG did not fight them on that. Interestingly, Justice Sotomayor also jumped in to say that the Court could accept Carvin’s representation that there is standing, thus suggesting her desire to reach the merits.
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Essentially no chance #SCOTUS will dump #King case and not decide it because of doubts about the plaintiffs’ standing.
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CJ Roberts did not ask any questions of the challengers’ lawyer in #King; did question the govt. 10 extra mins given to each side to argue.
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Half way thru #King, court is split on ideological lines. No clear majority. CJ Roberts silent. One Kennedy question favors the govt.
Some Updates from the WSJ Live Blog
In real time, arguments have just ended, but we’ll keep posting updates on the back-and-forth as we hear from our reporters.
9:37 amby Brent KendallAdd a Comment
Mr. Carvin said states had ample time to set up their own exchanges and knew how to read statutes. He said it would be a “bizarre notion” if the states didn’t know how to read and understand what he said was a very clear legal provision that conditioned insurance subsidies on the creation of a state exchange.
9:36 amby Brent Kendall
The discussion then shifted to whether the location of the subsidy provisions in the law made sense if Congress meant to pressure the states to create exchanges. Justice Kagan suggested it didn’t, while Justice Alito suggested it did.
9:34 amby Brent Kendall
When Chief Justice Roberts decided to give Mr. Carvin extra argument time, Justice Kagan jumped in and said, well, I’ll ask another question then. Again the audience laughed. Justice Kagan said that if Congress meant to impose potentially severe penalties on states that didn’t establish their own exchanges, they would have done so more clearly. No one thought about reading the law in the way that Mr. Carvin interpreted it for more than a year after the law was passed, she said.
9:31 amby Brent Kendall
Justice Sotomayor questioned whether states fully understood that their residents wouldn’t get subsidies if they didn’t establish exchanges. When Justice Ginsburg again said Mr. Carvin’s arguments this time didn’t completely square with what he told the court in the last case, Chief Justice Roberts jumped in. Did you win that last case, the chief asked Mr. Carvin. (He didn’t.) The courtroom audience laughed.
9:28 amby Brent Kendall
Mr. Carvin said there was “not a scintilla” of evidence that state insurance markets would go into a death spiral if subsidies weren’t available for residents. He again stressed his argument that the words of the law are quite clear in stating that subsidies are available only on insurance exchanges established by the state. (RELATED: Insurers’ Biggest Fear: A Health-Law Death Spiral)
9:27 amby Brent Kendall
Justice Kagan said that when Mr. Carvin appeared before the court in the 2012 case, he in effect conceded that the subsidies were available nationwide. Justice Sonia Sotomayor said that “no one” would use the federal exchange if there are no subsidies.
9:26 amby Brent Kendall
BACK TO THE ARGUMENTS: Justice Ginsburg jumps in, saying that if the nationwide subsidies are struck down, there would be disastrous consequences for states that don’t create their own exchanges. When Mr. Carvin said there would still be benefits to the federal insurance exchange, even without the availability of subsidies, Justice Ginsburg questioned what those would be. What customers would buy on the federal exchange and what insurance companies would sell on it? she asked.
8:41 AM PT: More from SCOTUS Blog. Awesome as usual. I make no predictions here. Just trying to give people reading material.
(last update 11:33 AM)
Second update (11:33 AM) : The broad outlines of the government’s merits argument, and Justice Scalia’s first reaction
After the Solicitor General briefly discussed the standing issue, he outlined the government’s two broad arguments on the merits. The first is that the government’s interpretation of the statute, which makes subsidies available on exchanges created by both the states and HHS, is the best way to give meaning to all the words of the statute. The second point is that the government’s reading “is compelled by” the structure and design of the statute–specifically that it was designed to ensure state flexibility in setting up exchanges, to avert death spirals, and to provide affordable care for all. He argued that in light of these goals, Congress simply could not have intended for the statute to function as intended.
That provoked an immediate and sharp response from Justice Scalia, who said that “of course” Congress could have enacted a statute that functions the way petitioners describe. Justice Scalia then engaged the Solicitor General in a back and forth about whether statutes can ever be written in less-than-optimal ways, and about whether they can ever be nonsensical. The argument implicit in the questioning was that even if Congress wanted to enact a law that works, it doesn’t mean that it actually did so. In that sense, Justice Scalia seemed to be drawing an even harder line than the petitioners.
At that point I left the room to come talk to you all. Justice Scalia’s questions are very interesting in light of recent statements he’s made reiterating that statutes should be read as a whole. Of course, the government urges such a reading in this case, arguing that a holistic reading supports its view of the subsidy provisions, but the petitioners make whole-statute arguments as well even as they emphasize the particular words in Section 36B that support their argument most clearly.
We’ll have more updates once the argument is done. The buzzer just sounded, so stay tuned.
First update (11:26 AM): Skepticism about anomalies from Justices Breyer and Kagan
A bit more detail about the “anomalies” discussion at the end of Carvin’s argument: Justice Breyer began by offering Carvin “5 to 10 minutes to respond” to the idea that his interpretation of the statute would create anomalies, i.e., that if the phrase “established by the state” is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical. Carvin responded by going through Breyer’s list of anomalies and offering his responses to them. He also argued that the federal government’s interpretation would create more anomalies, including the potential loss of Medicaid funding for states that don’t establish exchanges because they could not ensure coordination between the federal exchanges in their states and other relevant officials (a prerequisite to Medicaid funding).
The most interesting “anomaly” raised, and the one that received the most attention, refers to “qualified individuals” under the statute. The statute provides that insurance shall be made available on exchanges to “qualified individuals,” and further defines a “qualified individual” to mean, “with respect to an Exchange, an individual who” both wants to enroll in a qualified plan, and also “resides in the State that established the Exchange.” The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to “establish” an exchange is to create it on its own, then there would be no “qualified individuals” in states that failed to do so, and therefore there would be nobody on the exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).
Carvin’s answer was very interesting. Basically, he argued that this argument was a bluff by the government. He argued that if the petitioners prevail in this case, the federal government will never concede that there are no qualified individuals, but will instead try to find other ways to shoehorn people into the definition, or find ways to argue that federal exchanges are not limited to offering insurance only to qualified individuals. He offered some of those possible arguments, but did not go into detail.
8:55 AM PT: SCOTUSblog's avatar
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Argument is over. Key vote CJ Roberts essentially silent.
9:55am · 4 Mar 2015 · Tweetbot for iΟS
8:58 AM PT: SCOTUSblog's avatar
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J. Kennedy’s questions were mixed. Overall, the Administration should feel more optimistic than challengers, but the ruling is uncertain.