Obama’s Supreme Court gambit


President Obama’s impassioned defense of the Affordable Care Act is riling opponents of the law and drawing accusations he’s trying to bully the Supreme Court.

But Obama’s pointed comments, which appeared to be aimed at least partly at influencing the justices, are baffling some court-watchers who say that the decision in the King v. Burwell case was likely settled long ago.


“I don’t know what they’re up to. It seems quite calculated, but I can’t figure out calculated to do what,” said Tom Goldstein, a Supreme Court expert and publisher of SCOTUSBlog.

With the ruling on ObamaCare expected any day, legal experts say it’s unlikely that any rhetoric from the White House could cause a major shift in the justices’ opinion. Still, they say it’s possible that the justices are continuing to nail down all the details, particularly if they are planning to rule against the administration.

And there’s a chance that the court could be paying attention to Obama’s remarks.

“As a practical matter the case has been decided. That doesn’t mean all the nuances have been decided,” said Jim Blumstein, a constitutional and health law professor at Vanderbilt University.

If the court rules against ObamaCare in King v. Burwell, it will likely mean that only states that run their own healthcare exchanges can distribute federal subsidies. If that happens, Blumstein said the justices would have to decide when to shut off the subsidies to states using the federal system — an issue he said they would “probably” still be debating.

Obama’s unvarnished remarks about the healthcare law surfaced Monday in Germany, where he told reporters the Supreme Court never should have taken up the case in the first place.

The next day, Obama delivered a 3,600-word speech to the Catholic Health Association, where his staff distributed booklets titled “health care accomplishments.” The White House also launched a website devoted to ObamaCare and its history, which featured more than 30 people who depend on the law for healthcare and a letter from one of its biggest champions, the late Sen. Edward Kennedy (D-Mass.).

In both appearances, Obama appeared far more defensive about the healthcare challenge than he had since the court took up the case last November.

That shift in tone surprised Goldstein, the veteran Supreme Court follower, who said until now the administration “just exuded confidence.”

“They weren’t just celebrating the Affordable Care Act, they were talking about how the Supreme Court shouldn’t have been involved and how unconscionable it would be to strike down the statute,” he said.

While Goldstein said it’s unlikely the administration believed it could change the outcome, he warned that the government’s pleas to uphold the law could be taken the wrong way by the court.

“It has the real chance to backfire. The justices really don’t like being pressured into something,” Goldstein said. “You start jumping up and down at them and the justices get their backs up.”

The Obama administration has repeatedly said that a ruling against the law could cause chaos in the marketplace, but has denied that it’s trying to send a message to the court.

“Of course not,” spokesman Josh Earnest told reporters earlier this month. “It is, I think, the consequence that has been observed by a large number of individuals in both parties about the impact of the Supreme Court’s ruling.”

It’s not the first time the administration has played up the benefits of the healthcare law when faced with a potentially disastrous legal challenge.

As the Supreme Court was weighing whether to strike down the law’s individual mandate in 2012, Obama was even more direct in his appeal to the justices.

“I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get healthcare,” he said at a press conference in April of that year.

“So there’s not only an economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate,” he added.

The Supreme Court ultimately upheld most of the Affordable Care Act in that ruling, with Chief Justice John Roberts reportedly breaking from the court’s conservative bloc late in the process.

“The justices seemed, in 2012, to be thinking along the lines of, ‘Well this is a big deal, a very complex statute. ... We should do everything we can do to save it from unconstitutionality so the legislative branch can deal with it,’ ” said Abigail Moncrieff, a healthcare law professor at Boston University.

“I think that might have been what Roberts was thinking,” she added.

Experts say the King v. Burwell case involves a far less complex legal question. While the previous case questioned the constitutionality of the entire healthcare law, the new challenge centers around the reading of just one clause.

Republicans are scrambling to come up with a plan that would prevent an estimated 6.4 million people from immediately losing their healthcare subsidies, fearing that an abrupt loss of the federal help could hurt the party at the polls in 2016.

The GOP solution will include the repeal of both the individual and employer mandates for insurance while temporarily keeping the subsidies — setting up a heated political battle over the law’s future.

If he loses the case, Obama would likely fire off the same style of attack against his opponents that he previewed this week, decrying “endless partisan” attacks against the law.

“It seems so cynical to want to take coverage away from millions of people, to punish millions with higher costs of care and unravel what’s now become part of the fabric of America,” he told the Catholic Health Association conference.