While it's still too early to tell how King v. Burwell will end up, if the oral arguments are any indication, reports of the Affordable Care Act's demise are, to paraphrase that great Mark Twain line, "greatly exaggerated."
The glimmer of hope came courtesy of Justice Kennedy, who raised several concerns with the challenger's case, chief among them occurred during this exchange with Michael Carvin, the plaintiff's attorney:
"There's something very powerful to the point that if your argument is accepted, it's hard to see how this is not coercion. Court and counsel for both sides should confront the proposition that your argument creates a serious constitutional question."
The constitutional question Kennedy is citing concerns the Tenth Amendment, which says that Congress can't force or coerce a state to follow any regulation or legislation. If the subsidies in states that have a federally set up exchange are ruled invalid, it would mean that those states would be forced to set up their own exchanges to prevent their citizens from facing massive rate hikes.
Jay Michaelson of The Daily Beast writes, "One of the classical canons of judicial interpretation is called the Canon of Constitutional Avoidance. It holds that if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems."
If that is indeed true, if the argument that the plaintiffs are making - that the words "established by the state" means that subsidies are only allowable in states that set up their own exchanges - is ambiguous, then the only proper thing for the Court to do is find for the government.
Like I said, it's still too early to tell what happens here. The Court could go 5-4 against Obamacare or it could go 5-4 or even 6-3 in favor. It wouldn't surprise me that if Kennedy ends up being the swing vote for, Chief Justice Roberts doesn't go along with him to write the majority opinion. Just like in 2012, we're going to have to sweat this one out. A specious argument that should never have gotten this far is now only a few months away from possibly gutting a law that at present is the only hope for millions of people who heretofore had none.
Ideology run amuck? Yep. But ever since Bush v. Gore that's pretty much been standard operating procedure with this Court.
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