Viewpoints: Health Challenge Appears Flimsy; Issue Of Coercion; Kennedy’s Role
A selection of opinions on health care from around the country.
USA Today:
Let Obamacare Live: Our View
For the second time in Obamacare's short five-year life, the Supreme Court has a chance to kill or cripple the law in a way that political opponents have not been able to do despite endless attempts. The court heard arguments in the case Wednesday, and the evidence suggested that this latest challenge is even more flimsy than the one the court wisely rejected in 2012. (3/4)
USA Today:
Law Means What It Says: Opposing View
The King v. Burwell challenge to the Affordable Care Act at the Supreme Court presents a straightforward case of statutory interpretation. The question is whether the law authorizes the issuance of tax credits in exchanges established by the federal government. The statute is clear on this point. Tax credits are available in exchanges "established by the state," and the federal government is not a state. Were there any doubt on this point, the law defines "state" to mean one of the 50 states and the District of Columbia. The Department of Health and Human Services is not a state. (Jonathan H. Adler, 3/4)
Bloomberg:
Four Ways Obamacare Can Survive The Supremes
The chances of Obamacare surviving its latest legal challenge seem much brighter after Wednesday's oral argument at the Supreme Court. ... The justices' questions offer some support for the law's supporters. At this point the government has four paths to victory; the challengers have only one. (Timothy Jost, 3/4)
The Wall Street Journal:
Federalism And ObamaCare
A closely divided Supreme Court heard arguments in the challenge to ObamaCare’s illegal subsidies on Wednesday, and the session spun off in an unexpected and provocative direction: To wit, several Justices suggested that the Affordable Care Act as drafted would unconstitutionally coerce the states. ... One problem is that coercion precedents like South Dakota v. Dole (1987) involve situations in which the states were given an initial choice to cooperate, or not. Then the federal government later sought to fundamentally change the terms of a longstanding bargain by threatening to withhold spending, take it or leave it. ... That is not the same as this case. If Governors decline to establish an exchange, their citizens are not entitled to benefits, but that is not coercion. That is the very trade-off that is supposed to encourage states to participate. (3/4)
The Wall Street Journal:
A State Reply To Justice Kennedy
In the hours since oral arguments, much of the talk has centered around Justice Anthony Kennedy ’s suggestion that “from the standpoint of the dynamics of Federalism . . . there is something very powerful to the point that if [the challenger’s] argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral.” In other words, Justice Kennedy was asking, if Congress did in fact condition ObamaCare’s tax credits on a state having set up an exchange, does that amount to an unconstitutional coercion of the states? In short: no. (Scott Pruitt, 3/4)
The Washington Post's PostPartisan:
Will Anthony Kennedy Save The Day For The Obama Administration?
With all the usual caveats — it’s dangerous to read too much into random comments at oral argument, justices are apt to change their minds — that seems to be the better bet emerging from the argument Wednesday in King v. Burwell. Kennedy isn’t the most obvious candidate to back the administration. After all, he voted to strike down the individual mandate to purchase health insurance during the law’s last big test. (Ruth Marcus, 3/4)
The Washington Post:
Obamacare’s Rescuer?
Based on that history, many thought [Justice Anthony] Kennedy would seize on the second chance to thwart Obamacare that is being presented by King v. Burwell — a challenge to the law’s crucial tax-credit insurance subsidies now before the court. The betting was that [Chief Justice John] Roberts would again be the Obama administration’s best hope for a fifth vote. During oral arguments Wednesday, though, Kennedy sounded astonishingly reluctant to do the deed. (Charles Lane, 3/4)
Los Angeles Times:
Obamacare Opponents Make Out-Of-Context Pitch To The Supreme Court
The false premise is that lawmakers intended to withhold subsidies from states that did not set up their own insurance exchanges as a way to strong-arm them into doing the work. I laid out the actual history of the act in a post last year, but the short version is that such a plan was never even discussed. The closest Congress came to doing so was a preliminary proposal in the Senate that would have withheld subsidies from states that didn't enact more consumer-friendly insurance regulations, but that idea was dropped by the time the measure reached the Senate floor. (Jon Healey, 3/4)
Los Angeles Times:
Obamacare Challengers' Ridiculous Claims Head To The Supreme Court
There are numerous reasons why the court should reject the plaintiffs' phony narrative about the new exchanges that Congress required in every state. One of the best, though, is that a ruling in the plaintiffs' favor would retroactively penalize states and their residents for choosing to let Washington run their exchanges when the consequences couldn't have been foreseen. (3/4)
The New York Times:
The Supreme Court And The Fate Of American Health Care
In 2012, the chief justice of the United States, John Roberts Jr., saved the Affordable Care Act by a single, surprising vote. On Wednesday morning, the chief justice was again expected to hold the decisive vote as the Supreme Court heard extended oral argument in the latest assault on President Obama’s signature health care law. The case, King v. Burwell, will determine the fate of legislation that has transformed the American health care system. But the argument provided few solid clues to how the justices will rule. The chief justice remained virtually silent for the entire argument, while most of the others took predictable positions in questioning the government or the challengers. (3/4)
Bloomberg:
Obamacare Is On Roberts's Shoulders, Again
Three years ago, in the first Affordable Care Act case before the U.S. Supreme Court, Chief Justice John Roberts invented a legal doctrine that he memorably called the “gun to the head.” During oral arguments on Wednesday in the second ACA case, Justice Anthony Kennedy aimed the gun at Roberts. Roberts originally used the doctrine to gut the ACA’s extension of Medicare to unwilling states. Kennedy, by contrast, used it to try to pressure Roberts to save Obamacare by suggesting that Congress couldn’t lawfully deny tax subsidies to states that failed to create their own insurance exchanges. (Noah Feldman, 3/4)
Bloomberg:
The Heart Of The Obamacare Case
Beyond the technicalities of guns to the head and standing, a profound issue lies at the heart of the King v. Burwell case that the U.S. Supreme Court heard Wednesday -- and for a few shining moments, the justices debated it. That question can actually be put rather simply: What should happen when Congress writes a law with some internal incoherence? Should the courts assign a sensible meaning to the statute that makes everything come out right? Or should they follow the strict words of the law, and let the chips fall where they may? (Noah Feldman, 3/4)
Bloomberg:
Government Wants Obamacare Ruling Now
Justice Ruth Bader Ginsburg opened the King v. Burwell argument Wednesday in the U.S. Supreme Court by asking whether the challengers are actually being injured by the Affordable Care Act and have standing to bring the case. Then something weird happened. Even though the lawyer for the challengers couldn’t definitively say his clients had standing, Solicitor General Don Verrilli seemed not to want the court to dismiss the challenge to Obamacare on that ground. ... what would happen if the case were dismissed on standing grounds: It would come back later, with different plaintiffs. That would be fine -- unless Jeb Bush or another Republican is president and a new solicitor general won’t defend the statute as Barack Obama's administration reads it. The government might not want to wait for another round -- even if it means cutting corners on standing. (Noah Feldman, 3/4)
Bloomberg:
Obamacare Case Is Not Life Or Death
This morning, someone on Twitter explained that this case really is different because if the Supreme Court rules the wrong way, thousands of people will die. I find this explanation wholly unconvincing, for two reasons. First of all, this is not somehow different from other controversial cases in the court's past. (Megan McArdle, 3/4)
The New York Times' The Upshot:
Even With An Unfavorable Court Ruling, Much Of Obamacare Would Live On
The case before the Supreme Court this week will not wipe Obamacare off the books. Unlike the case the court considered in 2012, which could have erased the Affordable Care Act entirely, this one concerns the application of only one provision of the law, and only to certain states. A ruling for the plaintiffs in the case, King v. Burwell, would carry huge consequences in many states, but 15 million of the people estimated to get insurance under the law would still get it, according to an Urban Institute estimate. (Margot Sanger-Katz, 3/4)
The New York Times' The Upshot:
The Supreme Court Has The Power To Deepen A National Health Divide
The Supreme Court has the potential to radically reshape the Affordable Care Act, creating a result profoundly different from that imagined by President Obama and the law’s drafters in Congress. Three years ago, the court essentially limited the law’s ability to expand health insurance to low-income Americans in red states. A case it is considering on Wednesday might result in taking away insurance access for middle-income people, too. (Margot Sanger-Katz, 3/4)
The Wall Street Journal's Washington Wire:
If Health Insurance Subsidies Are Struck Down, States Will Need Time
In op-eds published in The Wall Street Journal and the Washington Post this week, Republicans sketched out fallback positions, suggesting actions that Congress could take if the Supreme Court rules for the plaintiffs challenging the legality of health insurance subsidies in states with federally run marketplaces. But the odds are very low that Democrats and Republicans in Congress and President Barack Obama could agree on any health-care legislation, much less come to consensus on what Senate Majority Leader Mitch McConnell has called a “mulligan” and a “do-over” for the Affordable Care Act. If the court rules for the plaintiffs in King v. Burwell, action is not likely to come from Congress but in the 34 states where about 7.5 million people would lose insurance subsidies. (Drew Altman, 3/4)
USA Today:
Lives At Stake Before Top Court
I'm a nurse caring for kidney transplant patients over the course of my 12-hour work days. Tough choices my patients have faced and the loss of my own mother-in-law to treatable conditions motivated me to join other healthcare workers in filing an amicus legal brief in a watershed case coming before the U.S. Supreme Court next week, King v Burwell. (Michelle Boyle, 3/4)
USA Today:
Obamacare On SCOTUS Chopping Block
Critics complain [a ruling for the challengers by the Supreme Court] would eliminate subsidies in HealthCare.gov states, making the cost of Obamacare coverage transparent to enrollees. But those enrollees will be able to switch to lower-cost "catastrophic" plans — if the Obama administration allows it. To date, the administration has adamantly refused to say whether it would take even this small step to help affected HealthCare.gov enrollees. More important, transparency is a good thing. If enrollees don't want to pay the full cost of Obamacare coverage, that tells us something very important about Obamacare (Michael F. Cannon, 3/4)
USA Today:
GOP's Obamacare-Lite Needs To Die, Too
With the Supreme Court hearing another challenge to ObamaCare Wednesday, Republicans are scrambling to craft their replacement plan. The leading contender is the "Patient Choice, Affordability, Responsibility, and Empowerment Act" — the Patient CARE Act — authored by Senators Orrin Hatch and Richard Burr and Congressman Fred Upton. They have heralded the plan as a "common-sense" proposal which includes "patient-focused" reforms without ObamaCare's "Washington mandates." But despite its authors' good intentions and their exemplary work in other policy areas, it will do little to fix America's broken health care system. At best, it will be ObamaCare-lite. At worst, it will be ObamaCare by another name. And in either case, it will not fix health care. (Nancy Pfotenhauer and Nathan Nascimento, 3/4)
The Washington Post's The Fix:
No Matter What The Supreme Court Decides, Opinions On Obamacare Won’t Change
Obamacare is back in the news today as the Supreme Court hears oral arguments in King v. Burwell, a case that could invalidate subsidies in states that use the federal insurance exchange -- a development that could unravel the entire law. No one knows for sure how the Court will rule on this second major challenge to the Affordable Care Act -- it ruled in 2012 that the individual mandate was constitutional -- but there is one thing we do know: No matter what the Court decides, it won't change public opinion on the law. (Cilllizza, 3/4)
The Washington Post:
The Supreme Court Cannot Hide On Obamacare
The Supreme Court, it would seem, did not want you to see what it was up to on Wednesday. The robed nine were hearing oral arguments in King v. Burwell , a legal effort by conservatives to dismantle Obamacare and probably the most politically charged case to appear before the high court since Bush v. Gore. But, as always, there was no video of the proceedings and, curiously, the court chose not to release same-day audio of the argument, as it did in Bush v. Gore and has done in other high-profile cases since then. (Dana Milbank, 3/4)
The Washington Post's Plum Line:
A Hint Of Good News For Obamacare, But Don’t Get Your Hopes Up Too Much
Supreme Court oral arguments have wrapped up in King v. Burwell, and the initial reports suggest reasons for a hint of optimism, but absolutely do not get your hopes up: It is still very plausible that Anthony Kennedy and John Roberts could rule with the challengers in spite of what we heard today. (Greg Sargent, 3/4)
The Washington Post's The Volokh Conspiracy:
Avoiding Constitutional Avoidance
From questioning today in King v. Burwell, there is quite a buzz that Justice Kennedy appears concerned about whether interpreting the ACA to deny subsidies to citizens of states with federal exchanges would unconstitutionally coerce states to set up their own exchanges. The alleged coercion would result from the damage caused to the insurance markets of these states by the other mandates in the ACA — for example, by “community rating” that restricts the ability of insurance companies to set their rates according to actuarial risk, and “guaranteed issue,” that is, preventing carriers from refusing insurance based on pre-existing conditions. The concern is that, because these provisions absent a subsidy would cause a “death spiral” in those states, states would be unconstitutionally coerced to setting up their own exchanges lest their insurance markets be destroyed. Therefore, it is contended, under the doctrine of “constitutional avoidance,” the ACA should be interpreted to avoid this unconstitutional result and allow the IRS regulation to stand so subsidies will flow to the states. (Randy Barnett, 3/4)
The Washington Post's The Volokh Conspiracy:
Things We Learned At Today’s Oral Argument In King V. Burwell
Now that I’m back on Ohio, here are some additional thoughts and observations about today’s oral argument in King v. Burwell. One should never read too much into oral argument, but the questions the justices ask and how they respond to the advocates can sometimes provide a window on how they see the case. With that in mind, here are some of my observations. (Jonathan H. Adler, 3/4)
The Washington Post:
Reading The Tea Leaves From The Obamacare Arguments
My point is, four words can have more impact than you want them to. And then not only is your relationship ruined, but you might not have health insurance any longer. (Alexandra Petri, 3/4)