The future of Obamacare again falls on the shoulders of John Roberts and Anthony Kennedy.
As the Obama administration and Obamacare opponents prepare for another Supreme Court showdown Wednesday, both sides are tailoring their arguments to win over the chief justice, who cast the saving vote for the Affordable Care Act in 2012, and Kennedy, the perennial swing vote on the Supreme Court.
The court is likely to split largely along ideological lines with Kennedy or Roberts casting crucial votes. Some Obamacare backers are even making a pitch to Justice Antonin Scalia to look at a broad reading of the law, although winning him over seems like a long shot.
The challengers — four Virginia residents who don’t want to abide by the mandate that Americans buy health insurance — argue that the Obama administration is illegally giving out Obamacare subsidies. They say a phrase in the text of the massive law — that subsidies go to “exchanges established by the state” — only allows the money to go to residents of the 16 states, plus Washington, D.C., that set up their own insurance exchanges. If the plaintiffs prevail, more than 7 million people now receiving the subsidies in 34 states would lose them.
The opponents’ lawyer, Michael A. Carvin of the law firm Jones Day, will argue that Congress all along intended to direct the subsidies through the state-run exchange as an incentive for the states to take on that task instead of leaving it to the federal government. The plaintiffs point to early versions of health reform legislation, one considered in the Senate Health, Education, Labor and Pensions Committee, that tied together subsidies and a state’s insurance reforms.