The countdown to King v. Burwell
Any day now, the Supreme Court will decide the highly anticipated King v. Burwell, which will determine the viability of a central mechanism of the Affordable Care Act.
Any day now, the Supreme Court will decide the highly anticipated King v. Burwell, which will determine the viability of a central mechanism of the Affordable Care Act (ACA)-tax credit subsidies for economically eligible citizens.
Stuart M. GersonAt issue is whether the program of tax credits applies only in exchanges set up by 16 states, and not at federally run sites in 34 states. The Obama administration’s economic model for the ACA depends upon the tax subsidies being generally available, and therein lays the significance of the case which puts a keystone element of the ACA at risk.
All pending cases on the subject of the ACA tax credits are contingent on what the Supreme Court decides in King v. Burwell. A ruling is expected before the month’s end.
The likely decision
Justices Scalia, Thomas and Alito are highly likely to vote to reverse, believing that, at best, it is the job of Congress, not the Court, to fix a defective legislative regime.
Similarly, there can be little doubt that Justices Ginsburg, Breyer, Sotomayor and Kagan will vote to affirm, seemingly believing that the authorship of a particular exchange does not matter in the total context of the ACA.
Justice Kennedy was particularly interested in whether the onus that the regime places on the states rises to the level of compulsion that the Court held violates federalism when it held that the ACA was constitutional, but that the federal government could not make the states expand Medicaid.
This creates a possible fifth vote to affirm and it is not improbable that Chief Justice Roberts will join Justice Kennedy. I thus think it more probable than not that the Fourth Circuit will be affirmed and the ACA tax credit subsidies upheld.
The potential legal implications
If King is upheld the primary legal implication is that it will be a victory for a contextual reading of a statute and a defeat for the textualist justices who believe that a statutory provision should be read literally, i.e., when it says State, it means State.
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