Wednesday’s oral arguments in King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase their health insurance on a marketplace created by the federal government, continue to dominate coverage of and commentary on the Court. In The Wall Street Journal, Louise Radnofsky and Jess Bravin report that “Justice Samuel Alito ’s suggestion that the Supreme Court could delay for months the impact of a decision to gut the health law revives the possibility that at least a dozen states could take action to limit the effect of such a ruling.” At FiveThirtyEight, Oliver Roeder writes that “Solicitor General Donald Verrilli won Wednesday’s oral arguments in King v. Burwell, the latest challenge to the Affordable Care Act. Or at least that’s what the wisdom of the crowd is telling us.”
Commentary on Wednesday’s oral arguments comes from The New Yorker’s Jeffrey Toobin, who concludes that, “[a]t a minimum, the votes of Roberts and Kennedy seem like they are in play—and that may be the best the Obama Administration could have hoped for at the outset of the day.” At Politico Magazine, Abbe Gluck contends that, “[a]t long last, the federalism implications of the Obamacare challenge . . . appear widely understood.” Nicholas Bagley also focuses on federalism at The Incidental Economist, arguing that “established interpretive principles would allow the Court to protect federalism values without wading into uncertain and contested constitutional terrain. The Court has plenty of tools to avoid the avoidance doctrine—and the constitutional baggage that comes along with it.” At the Constitutional Accountability Center’s Text and History Blog, Simon Lazarus argues that, despite assertions to the contrary, Solicitor General Don Verrilli’s “account of the facts” relating to the provenance of the statute “is perfectly accurate.” At The Economist, Steven Mazie weighs in on the oral argument; at The Economist’s Democracy in America blog, he dissects the argument further, concluding that “I do not think that Justices Samuel Alito and Scalia will ultimately vote to save Obamacare. But I think both men will fret when writing their opinions and will try to find ways to soften the blow.” At Balkinization, Marty Lederman discusses and addresses Justice Kennedy’s concerns about coercion, while elsewhere at Balkinization, Brianne Gorod suggests that, “[a]lthough most of the questions that Justice Alito asked were critical of the government’s position, one actually helps demonstrate why the government should prevail.” At the National Law Journal, Gorod and Carrie Severino debate Wednesday’s oral arguments. Writing for The Washington Post, Greg Sargent discusses the idea of a legislative fix if the Court were to invalidate the subsidies, contending that “[i]t seems likely that it will only get harder later this year — not easier — for Republicans to fulfill any promise of a backup plan, either on the state or federal level.” At the Health Affairs Blog, Timothy Jost describes the oral argument as “a masterpiece—two highly competent counsel thoroughly in control of their arguments being grilled by Justices who had obviously read the briefs, thought about the issues, and prepared themselves to ask probing and difficult questions.” At Bloomberg View, Jost argues that “[t]he chances of Obamacare surviving its latest legal challenge seem much brighter after Wednesday’s oral argument at the Supreme Court.” At Harvard’s Bill of Health Blog, Rachel Sachs notes that “the Court displayed a more sophisticated understanding of the consequences of a decision striking down the subsidies in states that have not established their own exchanges.”
Before the King oral argument on Wednesday, the Court issued its decision in the tax discrimination case Alabma Department of Revenue v. CSX Transportation. Darien Shanske covered the opinion for this blog; other coverage comes from Taylor Gillan at JURIST.
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