U.S. Supreme Court Justice Anthony Kennedy is expressing surprising skepticism about the challengers' arguments in the King v. Burwell case, according to live blogging reports from SCOTUSblog and the Wall Street Journal.
According to the Journal, Kennedy said he sees “a serious constitutional problem” in the idea that Congress would force states to set up exchanges or risk their residents losing federal premium subsidies. Kennedy asked whether the petitioners' reading of the law would disrupt the federal-state balance. That suggests problems for the petitioners.
SCOTUSblog reported that several of the justices, including Kennedy, Stephen Breyer, and Sonia Sotomayor, expressed skepticism that the Affordable Care Act would function as intended if the petitioners' reading of the law to bar subsidies in states that did not establish their own exchanges were accepted.
Facing sharp questioning from the more liberal justices during his opening argument, Michael Carvin, the lead attorney for the challengers, conceded that context, rather than just the literal text of the statute, is important to understanding it.
Carvin argued, however, that there was “not a scintilla” of evidence that state insurance markets wouldn't function without subsidies.
Justice Ruth Bader Ginsburg also raised the question of whether the individual plaintiffs in the case have proper legal standing to bring the suit.
When U.S. Solicitor General Donald Verrilli Jr. began his opening argument, Justice Antonin Scalia quickly questioned one of his statements, SCOTUSblog reported. Verrilli said that given the overall goals of the law to provide affordable healthcare for all, Congress could not have intended to bar subsidies offered through the federal exchange. But Scalia rebutted that. He got into an extended discussion with Verrilli, suggesting that even if Congress wanted to enact a law that worked, it doesn't mean it achieved that.
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