(Jack Ohman, The Sacramento Bee)
The four deciding words, in fact, are "established by the State," as in exchanges. In oral arguments before the Court in King v. Burwell yesterday, there were some surprises, as well as the usual malicious input from "justices" Scalia and Alito. Here's Ian Millhiser's take on the somewhat positive turn things took yesterday:
The most important moment in the argument, however, was probably a concern raised by Justice Anthony Kennedy, one of five Republicans that the Justice Department needs at least one of in order to win its case. If tax credits are cut off in states with federally run exchanges, premiums will spike, and healthy people will likely drop insurance that they can no longer afford. Once that happens, however, the insurance companies will no longer have enough revenue to pay for sick peoples’ costs, so they will have to raise premiums even further. That, in turn, will cause more healthy people to drop care. The result is a “death spiral” where higher premiums beget fewer customers, which beget higher premiums, which beget fewer customers.
This threat of a death spiral raises constitutional concerns, because the Supreme Court’s first Obamacare decision forbids Congress from coercing states into taking certain actions. If states are forced to choose between setting up their own exchange or watching their individual insurance markets collapse, that could amount to unconstitutional coercion.
Justice Kennedy appeared to believe that it did. There’s “something very powerful” to this coercion argument, Kennedy said, adding that Carvin’s interpretation of the law raises a “serious constitutional problem.” Later in the argument, he indicated that the Court may have an obligation, under something known as the “constitutional avoidance doctrine,” to read the law in a way that does not raise constitutional doubts. [snip]
Obamacare is not out of the woods yet, and neither are the millions of people who will lose coverage or the thousands who will die if this case goes badly for the government. After Wednesday’s argument, however, those individuals have good reason to be optimistic. At least one of the Court’s Republicans appears to have come to work wearing his judicial robe, and not his partisan hat. (our emphasis)As for Scalia and Alito?
Justices Antonin Scalia and Samuel Alito were the only certain votes to strike down the credits, but their arguments at times painted them as political naifs. Alito, at one point, harped on the fact that only six states that refused to set up their own exchanges joined a brief urging the Court to uphold the tax credits — a fact that can be explained largely by partisan politics. Scalia asked: “won’t Congress fix” the problem if the Court breaks the law?
Verrilli had a sharp response to that later question: “This Congress, your honor?”Verrilli's response was greeted with laughter in the chamber, a sign that whatever the partisan right-wingers on the Court might have thought, people were probably on to the "we'll fix Obamacare" charade Republicans were floating to give cover to a fatal blow to affordable health insurance.