A Supreme Court win for the challengers in King v. Burwell won't likely mean an end to court cases involving the Affordable Care Act.
Rather, a victory for the challengers in the case could set into motion events that will lead to even more lawsuits from those on the political right.
The question in the case is whether insurance premium subsidies should be available to Americans in all states or just those with their own exchanges. If the court sides with King, striking down the subsidies in at least 34 states, many have speculated that the Obama administration might try to offer some quick fixes. Those actions would likely spur more lawsuits, some say.
“What the president is guaranteeing if he does that is years of more partisanship, years of more legal wrangling without any progress on health reform,” said Michael Cannon, director of health policy studies for the libertarian Cato Institute and a key influence behind the King v. Burwell challenge.
A decision in the case could come as soon as Thursday.
If the administration responded to a ruling against it, for example, by lowering the bar for states to be considered to have their own exchanges, then employers in those states would still face penalties for not offering insurance.
“That's a lot of potential plaintiffs,” Cannon said. Employers facing penalties would have a better chance of establishing standing to sue than their employees, he said.
Some have also suggested that if the court rules against the subsidies, some states might want to follow the lead of Nevada, New Mexico and Oregon, which have state exchanges but are using the federal HealthCare.gov technology. Cannon, however, said the ACA requires states to contract with eligible entities to run their exchanges, and the federal government doesn't qualify as eligible under the law.
The text of the ACA describes several types of eligible entities, and the federal government is not listed as one of them.
No one has yet challenged New Mexico's, Nevada's or Oregon's use of HealthCare.gov as state exchanges in court, though that's not to say they couldn't in the future.
Josh Blackman, an assistant professor at South Texas College of Law, said he doesn't believe Nevada, New Mexico or Oregon, specifically, would face legal challenges for defining their exchanges as state-run because they've done the work to establish those exchanges. Blackman filed an amicus brief for the Cato Institute siding with the challengers in King v. Burwell.
But Blackman does think efforts by the administration to simply deem more states as having their own exchanges would lead to more litigation.
“It would seem contrary to the intent of the law to simply wave a magic wand and deem a federal exchange to be a state exchange,” Blackman said. “Any fix for King v. Burwell must go through Congress, and any effort to do this through executive action will be held up in court and potentially frustrate a compromise down the road.”
Attempts by governors to establish state exchanges without their legislatures could also face legal hurdles, he said. Many states have passed laws prohibiting any state official from further implementing the ACA without legislative approval.
Also, state exchanges were supposed to be financially self-sustaining by Jan. 1, 2015. That means even if a governor wanted to establish an exchange without a state's legislature, by executive order, he would need the legislature to appropriate money for the exchange, Blackman said.
But Blackman said, “There will be a lot more litigation no matter what happens.”
“This was a law that was written in a manner that was very sloppy,” Blackman said. “There are a lot of things in the law that the administration has simply waved away by executive order and those will more likely than not be challenged in court.”
Cannon said he's not aware of any person or organization already gearing up for another lawsuit based on the outcome of King v. Burwell.
Sally Pipes, CEO of the Pacific Research Institute, said Wednesday she also didn't know of specific, potential litigation but agreed that more lawsuits are likely if the administration tries to the lower the bar for states to establish their own exchanges. The Pacific Research Institute filed an amicus brief in King v. Burwell siding with the challengers.
Tim Jost, a law professor at Washington and Lee University and prominent proponent of the ACA, also said he imagines lawsuits from those on the right may continue.
“They seem to have unlimited resources to file lawsuits and they seem to have a pool of people who are aggrieved with the Affordable Care Act in some general way who are willing to sign onto lawsuits even if they don't really understand what the lawsuits are about,” Jost said. “I would expect those lawsuits would continue to be filed.”
