With one week until the Supreme Court hears oral arguments regarding the federal subsidies case of King v. Burwell, the tug-of-war between the Obama administration and opponents of the Affordable Care Act rages on. But a new argument has surfaced that could be the saving grace for the administration.
Proponents of the ACA do, in fact, have a legal backup plan should the Court side with the plaintiffs, reported the Los Angeles Times. The plan highlights what's known as a "clear notice" rule for states: when Congress passes a new law that requires state cooperation, it cannot do so without pertinent information.
It comes down is: If Congress intended to restrict subsidies to exchanges established by the state, state officials should have been warned, and they were not.
"If you are Congress, you don't impose a penalty on the states and then hide it in an obscure provision involving the tax code that no one noticed at the time," Washington lawyer Walter Dellinger, a solicitor general under President Clinton, told the LA Times.
'Serious federalism implications'
"There are some serious federalism implications in these arguments," Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, said on a call with reporters this morning. "Congress did not wish to threaten states when it passed the ACA. Should the Court side with the plaintiffs, it will upset the general understanding of how Congress writes and translates laws to individual states."
What's more, suggested Neal Katyal, former acting U.S. solicitor general and partner at Hogan Lovells, Congress never intended to read the healthcare reform law in the way the plaintiffs read it. If Congress was to focus on each provision, hardly any would make sense without the greater context of the law.
Noted Wydra: "A ruling in favor of the plaintiffs places everyone in the industry at risk. It will be hard for the justices to turn a blind eye and read the four words being called into question ['established by the State'] out of context; the statute was designed to be read in its entirety."
When listening to the oral arguments, the justices will step back and reevaluate the ACA as a whole, said Katyal. Crafting the ACA was no easy feat--there was a lot of back-and-forth regarding provisions and the statute in general. But one thing was clear: Congress understood that not all Americans could afford health insurance. The ACA's main goal was "quality and affordable healthcare for all Americans," with an emphasis on the idea of "near universal coverage."
- here's the LA Times article