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Obamacare Ruling Could Hinge on Kennedy or Roberts Swing Vote

Obamacare Ruling Could Hinge on Kennedy or Roberts Swing Vote
Supreme Court Chief Justice John G. Roberts, left, and Justice Anthony M. Kennedy. (Mandel Ngan/Getty Images)

By    |   Wednesday, 18 February 2015 11:56 AM

The Supreme Court's looming decision on Obamacare subsidies will depend on the vote of one of its two conservative justices, but lawyers are divided over where to aim their arguments.

It will likely fall on Republican-appointed Chief Justice John Roberts or Justice Anthony Kennedy to cast the deciding vote, reports The National Journal,  and arguments that are likely to appeal to one of them may not appeal to the other, creating a quandary for the attorneys on both sides of the case.

"If you were thinking about this from the lawyers' perspective, it would be a mistake to take either the chief or Justice Kennedy for granted," said Kevin Walsh, a law professor at Richmond University and a former clerk for Justice Antonin Scalia.

Oral arguments are to begin on March 4, with a decision coming by the end of June, over whether the IRS improperly offered subsidies to millions of Americans to help pay for high-priced insurance policies. According to the law's language, the subsidies were to be awarded in states that set up their own healthcare exchanges, but more than three dozen states did not and the IRS still extended the subsidies to people residing in them.

Kennedy, through the years, has often cast the court's swing vote. But Roberts was the one who cast the vote to uphold Obamacare back in 2012 over the individual mandate. The current case, King v. Burwell, was expected to fall along the same lines as before, with four votes locked in on each side and Roberts casting the swing vote.

However, the current case is different from the 2012 case, including not being a constitutional challenge, The National Journal reports. Instead, it's more about interpreting the statute's text, and deciding whether the court should fix the law or return it to the Republican-controlled Congress, which will then have to decide whether to repair the law or repeal it.

"Where Roberts tends to trim his sails is where a ruling would really tie Congress' hands," said Jonathan Adler, a law professor at Case Western Reserve University. "Roberts shies away from broad constitutional questions because he doesn't want to take power away from Congress. He would much rather say, 'Congress, you screwed up; try again,' than, 'Congress, you can't do that at all.'"

This is creating a fear among liberals that the Supreme Court will rule that there is a problem with the Affordable Care Act's language, but that it's up to lawmakers to fix the problem, a ruling that could put the president's signature healthcare reform law in jeopardy.

But many people watching the case say that the same fears could push Kennedy, a strong Obamacare foe who gave a stinging argument in favor of scrapping the Affordable Care Act altogether in 2012, the other way.

While justices Roberts and Scalia concern themselves more with statutory interpretation and text questions, Kennedy leans more toward constitutional questions, such as the overall purpose of a law, The National Journal says.

And as such, Kennedy may be more open to an argument from the Justice Department that Congress intended all along for the subsidies to be available in all states, despite the law's language.

"His approach to text is maybe not as consistent as some of the other justices," Adler said.

Kennedy also has been known to concentrate on the issue of the balance between state and federal power, and state governments, in a brief filed as part of the lawsuit, say a ruling that invalidates the subsidies could cancel out states' deals on them.

In the brief, the supporters say the states assumed residents would get the subsidies, no matter who set up the exchanges, and are arguing that if Congress meant to deny the subsidies to their residents, it should have been more clear on its intentions.

"Congress did not give States clear notice that their citizens would be punished and their insurance markets ruined if the State chose [a federal exchange]," the states said in their brief.

That argument could also work with Roberts, said Adler. Harvard professor Laurence Tribe, who recently wrote a book about Roberts, agreed.

"A lot of conservatives say, 'The text is clear, it's about an 'exchange established by the state,'" Tribe told The Washington Post last month. "Roberts is not going to find it that simple.

"The text is at least ambiguous. It uses terms like 'such exchange' when referring interchangeably to an exchange that a state sets up itself and to the federal exchange a state might choose to treat as its own."

But Tribe believes Roberts will be the one to cast the swing vote, and if he votes in favor of the Obama administration's position, "Kennedy could conceivably join him.

"But I think if he does not vote to uphold the administration's position, then it's almost inconceivable that it [the law] would be upheld."

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The Supreme Court's looming decision on Obamacare subsidies will depend on the vote of one of its two conservative justices, but lawyers are divided over where to aim their arguments.
John Roberts, Anthony Kennedy, Obamacare, ruling
Wednesday, 18 February 2015 11:56 AM
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