(Story updated on 2:15 p.m. ET.)
Healthcare stakeholders and the public likely will have to wait at least another week—if not longer—to find out whether the U.S. Supreme Court will hear King v. Burwell, a case with the potential to severely disrupt implementation of the Patient Protection and Affordable Care Act.
The justices were scheduled last Friday to discuss whether to hear the case, but on Monday morning it was announced that they took no action. Shortly after that announcement, the court's website showed that the justices had scheduled another private discussion about the case, which is called relisting.
This Friday, the justices could decide to hear it, not hear it or to relist it again. Announcements typically come the following Monday.
Supreme Court watchers say it's common for the justices to relist cases before making decisions about whether to hear them.
“They often, especially in high-profile cases, put them off a week or two weeks or three weeks,” said Erwin Chemerinsky, dean of the University of California Irvine School of Law. There's no way to know whether the justices' decision this week means they're going to ultimately take it or reject it, he said.
The question in King v. Burwell is whether the language of the Patient Protection and Affordable Care Act allows consumers to receive premium tax credits in states that have not established their own exchange and instead are relying on HealthCare.gov. One part of the law says the tax credits are available only to Americans who enrolled “through an Exchange established by the State.” But the Obama administration argues that the law's clear intention was to offer subsidies and expand coverage to Americans in every state, and that other sections of the law indicate that subsidies are available to people in states served by the federal exchange.
In July, a 4th U.S. Circuit Court of Appeals panel in Virginia unanimously ruled in favor of the administration in King v. Burwell, saying subsidies should be allowed in all 50 states. The plaintiffs in the King case appealed to the Supreme Court.
If the Supreme Court decides to take the case, that's likely to create significant uncertainty in the healthcare industry and in the markets, because most healthcare stakeholders are proceeding on the assumption that the law's implementation will go ahead as scheduled. Four conservative justices signaled their dislike of the healthcare reform law in their dissents in the 2012 case National Federation of Independent Business v. Sebelius, which narrowly upheld the constitutionality of the law.
A number of experts have speculated that the high court likely will hold off on hearing King v. Burwell until a separate, similar case dealing with the subsidy issue is resolved by the full U.S. Circuit Court of Appeals for the District of Columbia. Oral arguments in that case, Halbig v. Burwell, are scheduled for Dec. 17. A panel of the D.C. Circuit Court ruled in a split decision that subsidies should not be allowed in states without their own exchanges. But that decision was vacated in September when the D.C. Circuit Court decided to hear the case en banc.
Experts say the Supreme Court often prefers to only jump into cases only when there's a split in the lower courts, and right now there is no split because the D.C. Circuit court's earlier judgment was vacated.
The Cato Institute, a libertarian think tank, held a panel discussion last week to discuss court cases related to the new healthcare law, and the panel's consensus was that the Supreme Court wouldn't likely take up King v. Burwell until there's a split in the circuit courts, said Robert Laszewski, president of the Health Policy and Strategy Association, a consulting firm in Washington, D.C.
Tim Jost, a law professor at Washington and Lee University, also said the court's lack of action Monday was no surprise. “It would be precipitous for them to decide at this point to just kind of barge in and take over the case,” Jost said. “That's not the way they usually do things.” Jost said without a split in the lower courts it would have been “transparently political” for them to decide to hear the case now.
He said some observers have tried to politicize the case, saying the court will hear it because it only takes four justices to make that decision and the court has five Republican-appointed justices. But he said he thinks that's a disrespectful view of the court. “The Supreme Court isn't a political body that simply makes knee-jerk political decisions,” Jost said. “It's a deliberative body that makes decisions based on the law.”
Jost said he doesn't expect the justices to ultimately decide to take the case because he doesn't believe there's much of a legal question to it.
But Michael Cannon, director of health policy studies for the Cato Institute and a key figure behind legal challenges to the subsidies, said the justices' decision to relist on Friday is encouraging. “Not only is the issue not frivolous but the petition for certiorari is not unwarranted as critics of the plaintiffs have alleged,” Cannon said. “If it were as easy a case as that, the Supreme Court would have just denied cert immediately.”
Chemerinsky said he could imagine the justices taking the case now, or holding off, or a number of other scenarios. He said there's no way to know, especially in a case like this. “Nothing they would do would surprise me on this,” Chemerinsky said. “It's a big case. It's such a high-profile matter and there are such intense feelings surrounding the Affordable Care Act.”
Open enrollment on the federal exchange starts Nov. 15. Both Jost and Laszewski said the Supreme Court's lack of a decision Monday should not affect that in any way.
Also, on Monday, 18 states filed a friend-of-the-court brief in Halbig v. Burwell, supporting the Obama administration's position that subsidies should be available in all states. Some of the 18 states have set up their own state-run exchanges and some have not. All 18 attorneys general who signed the brief are Democrats.
“If Appellants' erroneous construction of the ACA were adopted, it would deprive millions of low- and moderate-income Americans of billions of dollars in federal premium assistance needed to buy health insurance, and it would disrupt State insurance markets throughout the United States,” according to the brief. “Even States that operate their own Exchanges are concerned that insurance-market failures in [federal exchange] States would ripple into their own insurance markets, threatening the ability of the ACA to operate as a comprehensive nationwide program.”
Though the brief from the attorneys general was filed in a case separate from King v. Burwell, Jost said he hopes the Supreme Court justices will consider the states' stance.
In addition, a group of congressional Democrats who were the key authors of the Affordable Care Act published an op-ed in the Washington Post last week stating that the intent of Congress was to make subsidies available in all the states, not only those that established their own exchanges. “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces,” they wrote.
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