Few clues from Roberts on fate of ObamaCare at Supreme Court

Greg Nash

The Supreme Court appeared deeply divided Wednesday on whether to curtail subsidies under ObamaCare, with Chief Justice John Roberts and Justice Anthony Kennedy providing few clues about where they might fall.

Roberts, who cast the decisive vote in favor of ObamaCare in 2012, was unusually quiet during the oral arguments, prompting CNN analyst Jeffrey Toobin to declare the chief justice’s views of the case “almost entirely a mystery.”

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Supporters of ObamaCare had viewed Roberts as their best hope for winning King v. Burwell, which threatens to strip ObamaCare’s insurance subsidies from millions of people who live in states served by the federal exchange, HealthCare.gov.

With Roberts keeping his cards close, much of the attention Wednesday centered on Kennedy, a perennial swing vote who told the law’s challengers he saw a “serious constitutional problem” with their argument.

Kennedy had not been seen as a gettable vote for the administration, given that he voted to strike down the healthcare law in its entirety in 2012.

But he appeared to gravitate toward an idea first raised by liberal Justice Sonia Sotomayor: that a literal reading of the law advocated by the challengers would amount to a “coercive” ultimatum for the states.

“Let me say that from the standpoint of the dynamics of federalism, it does seem to me that there is something very powerful to the point that, if your argument is accepted,” Kennedy told the plaintiffs, “the states are being told either create your own exchange or we’ll send your insurance market into a death spiral.”

The new ObamaCare case centers around a single phrase in the Affordable Care Act, “established by the state,” that the challengers say should limit tax subsides only to states that set up their own insurance marketplaces.

The lawsuit, backed by conservative groups including the Competitive Enterprise Institute, has reopened the charged political debate over the healthcare law, with the nation’s highest court caught in the middle.

Politics appeared to be on the minds of the justices, with conservatives on the bench leading an unusual discussion into whether Congress could fix the law if the court ruled against the administration.

Justices Antonin Scalia and Samuel Alito acknowledged a ruling against the law could have major repercussions but questioned whether that should have any bearing on the court’s decision.

“What about Congress? You really think Congress is just going to sit there while all these disastrous consequences ensue?” Scalia asked U.S. Solicitor General Donald Verrilli Jr., who is representing the government in the case.

“This Congress?” Verrilli replied to laughter in the gallery.

Alito at one point said “it’s not too late” for states to set up their own insurance exchanges and even suggested the court could delay when its ruling takes effect to buy Congress time for finding a solution.

“Going forward, there would be no harm done,” Alito said.

While those arguments may have been aimed at Kennedy and Roberts, they also spoke to the larger political maneuvering that surrounds the case.

Republicans in Congress have made a concerted effort this month to show they are ready to act if the high court rules against ObamaCare, putting forward a half-dozen proposals to help people who would lose their subsidies.

Most of the proposals would provide temporary tax credits or subsidies to people who are at risk of losing their coverage.

President Obama, meanwhile, has insisted he has no fallback plan for a ruling against the law, in part to pressure the court to uphold the subsidies.

White House press secretary Josh Earnest dismissed the idea that Republicans would come to ObamaCare’s rescue, saying lawmakers “struggle mightily to do the simplest” things.

“The law is really clear that you really have to take four words entirely out of context in a 900-page law to contort it to mean what the plaintiffs in this case want it to mean,” Earnest said.

All four of the Supreme Court’s liberal justices appeared ready to side with the administration, with Justice Ruth Bader Ginsburg warning the case could have “disastrous consequences.”

Both Alito and Scalia backed up the law’s challengers overall, with attorney Michael Carvin arguing for the plaintiffs that a “plain English” reading of the Affordable Care Act stipulates the subsidies can only be distributed through exchanges “established by the state.”

Verrilli argued that the controversial clause was only found in a small part of the law intended to explain its implementation. He said that if that phrase was an attempt to pressure the states, then the consequences would have been written “in neon lights.”

Roberts remained quiet throughout the heated back-and-forth. His only hint to the court came early in the session, when he interrupted Carvin as he referred to the ObamaCare case he argued before the Supreme Court in 2012.

“Mr. Carvin, we’ve heard talk about this other case. Did you win that other case?” Roberts said sharply.

The courtroom was filled to capacity for the arguments, with Health and Human Services (HHS) Secretary Sylvia Mathews Burwell sitting rows away from prominent Republicans including House Ways and Means Committee Chairman Paul RyanPaul RyanClinton maps out first 100 days Why a bill about catfish will show whether Ryan's serious about regulatory reform Trump is right about one thing MORE (R-Wis.).

Former HHS secretary Kathleen SebeliusKathleen SebeliusFighting for assisted living facilities The chaotic fight for ObamaCare California exchange CEO: Insurers ‘throwing ObamaCare under the bus’ MORE was also in attendance, as well as House Minority Leader Nancy Pelosi (D-Calif.) and Sen. Ron WydenRon WydenDems push for US, EU cooperation on China's market status Senate Dems push Obama for more Iran transparency Watchdog faults Energy Department over whistleblower retaliation MORE (D-Ore.).

The justices will meet privately Friday to discuss the case, with a ruling expected sometime in June.