After Wednesday's oral arguments, it looks like the Supreme Court could go either way in the momentous King v. Burwell case with Chief Justice John Roberts casting the deciding vote.
After a century of fierce political debate in the U.S. over national health insurance, the fate of our new, near-universal coverage system almost certainly will be determined by either Roberts or Justice Anthony Kennedy.
If both of them vote to strike down premium subsidies in as many as 37 states using the federal insurance exchange, that could be the beginning of the end for the Affordable Care Act.
But they could rule in a way that preserves the subsidies for now while putting healthcare reform at the center of the 2016 elections and letting American voters decide the issue.
Kennedy, who was part of the minority that firmly rejected the Affordable Care Act in the 2012 challenge to the law, made comments Wednesday that could be interpreted as favorable to both sides in the current case.
Roberts, the swing vote in the 2012 case that saved Obamacare, mostly kept his thoughts to himself this time. Other than Kennedy, the other seven justices predictably lined up for or against the law.
The extreme political polarization between Republicans and Democrats has paralyzed the federal government. The nine justices of the Supreme Court—who are much less politically accountable than the president or members of Congress—increasingly have stepped into the power vacuum and made key decisions.
But the high court itself is sharply polarized between Republican- and Democratic-appointed justices. In many cases that means all-important decisions affecting the country are being made by one man, Chief Justice Roberts. And despite Kennedy's comments during the King arguments, I predict Roberts again will be the deciding vote.
Arguing for the four individuals challenging the ACA, Michael Carvin of Jones Day never offered convincing evidence that Congress and the Obama administration did not intend the premium subsidies to be available to Americans in all states when they enacted the law in 2010. U.S. Solicitor General Donald Verrilli Jr., presenting the case in defense of the law Wednesday, argued that the law's structure and context clearly suggest that subsidies should be available in all states. Justice Antonin Scalia countered by saying: “The question is not whether this is the statute they intended. The question is whether this is the statute they wrote."
Author Steven Brill, in a Reuters column earlier this week, said his exhaustive research into the legislative battle to draft and enact the ACA turned up no one, including leading congressional Republicans such as Iowa Sen. Chuck Grassley, who thought at the time that the subsidies would not be available in every state. “I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened,” he said. "None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange."
As Sam Baker wrote in the National Journal, “This isn't like figuring out what the Founding Fathers meant when they wrote the Second Amendment. Everyone who wrote Obamacare is still around—and waiting for the Supreme Court to tell them what they had in mind.”
Many legal and political observers believe Roberts is carefully considering the effect that a King ruling crippling the healthcare reform law would have on the Supreme Court's political standing as a neutral arbiter of issues—and on his own historical legacy as chief.
Even some conservative observers say Roberts ought to consider the millions of Americans who have been waiting a very long time for needed reforms in the U.S. healthcare system—not just patients but also physicians, hospital and insurance executives, and other industry stakeholders.
“As the enormous U.S. health industry reorganizes itself and invests billions of dollars to comply with the law, there is less and less enthusiasm about the idea of reversing course and effectively abandoning part of that large investment,” wrote prominent conservative health policy expert Stuart Butler, who first laid out the individual mandate framework nearly 25 years ago when he worked at the Heritage Foundation.
If Roberts invalidates the Internal Revenue Service rule allowing subsidies in all the states, he may argue that Congress should fix the problem, knowing full well that there's little possibility of a compromise political solution in the current environment. Or, more shrewdly, he could uphold the subsidies for now under the court's Chevron doctrine, while declaring the ACA's language ambiguous.
That would allow a Republican president and Congress in 2017 to reinterpret the law's language to kill the subsidies.
It certainly would raise the stakes for healthcare in the 2016 presidential election.
Whether Roberts ultimately decides to save or torpedo Obamacare, the case places a whole lot of power in the hands of one man.
Follow Harris Meyer on Twitter: @MHHmeyer