A new brief filed by those asking the U.S. Supreme Court to strike down the Obamacare premium subsidies focuses on what they fear are the government's strongest arguments for upholding the subsidies, experts say. But it makes no mention of new questions about whether the four individual plaintiffs have legal standing to even bring the case.
“The petitioners are trying to avoid (the standing issue) at all costs,” said Lisa McElroy, an associate professor of law at Drexel University.
At issue in King v. Burwell is whether the language of the Affordable Care Act allows federal premium tax credits only in states that established their own insurance exchanges. Experts say that if the petitioners win and subsidies are no longer available in as many as 37 states using the federal exchange, the law's insurance expansion and reforms will fall apart.
The brief filed last week argues that the ACA's term “established by the state” is not a “term of art” as the government claims, and that the Internal Revenue Service rule interpreting the law to allow premium subsidies in all states should be invalidated. “It would certainly be convenient, for an agency seeking to rewrite a statute, if an English phrase can become a term of art on the Government's mere say-so,” the brief argues. “It cannot.”
The brief also seeks to debunk the government's argument that the word “such” proves that Congress intended the federal exchange to be considered identical to the state-run exchanges. The law says that if a state does not establish its own exchange, then HHS “shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State.”