The US Supreme Court heard oral arguments on Wednesday, March 4, 2015 in King v. Burwell to determine the interpretation of a six-word phrase in the Affordable Care Act (“ACA”). The six-word phrase states the federal government can offer tax credits in the form of subsidies to help individuals pay for health insurance through “an Exchange established by the state.” The US Supreme Court must determine whether the six-word phrase prohibits the tax credits from being extended to individuals who purchase health insurance on federally-operated exchanges.
The petitioner’s attorney, who is seeking to invalidate the tax credit in states with federal exchanges, confronted a tough line of questioning from the more liberal Justices as oral arguments began. The liberal justices focused their line of questioning on the context of the ACA, rather than the literal meaning of the six-word phrase. Relying on context, according to the liberal justices, the entire ACA must be considered paramount to the literal interpretation of the six-word phrase, and that is, the ACA is designed to provide health insurance to all Americans.
It remains to be seen how the remaining five, more conservative, Justices will rule. Justice Kennedy, sometimes a swing vote, expressed concern of a reading that would invalidate the extension of tax credits in states with federally-operated exchanges because such a reading could coerce states into creating state-operated exchanges to make its residents eligible for the tax credit.
Justice Kennedy also stated, however, that he was troubled by how the Obama administration implemented the law. Chief Justice Roberts, who was the swing vote three years ago when the Court ruled in favor of the ACA on a separate issue, remained mostly silent throughout the oral argument. Justices Alito and Scalia appeared most sympathetic to the petitioners in the case, but even they acknowledged negative consequences could follow if tax credits are struck down in states with federally-operated exchanges. Justice Thomas remained silent throughout oral argument although many expect he will side with the petitioners (challengers).
It remains to be seen how the Justices will vote despite attempts to glean insight from the questioning and discussions during oral argument. The Justices began their first in-person conference on Friday, March 6, 2015 and are expected to issue their decision in late June when the Court recesses.