While a big relief to health consumer advocates and supporters of the ACA, today’s decision was not a surprise. After the court originally agreed to hear the case, the outcome was considered a tossup. Justices Ginsburg, Breyer, Sotomayor and Kagan were clear votes for the defense, while Justices Thomas, Scalia, and Alito were considered to be locks for the plaintiffs. Pundits were unsure where Justice Kennedy (who is often the swing vote on many of the court’s close decisions) and Chief Justice Roberts (who delivered the decisive vote in a 2012 ruling upholding key sections of the ACA) would land.
But following oral arguments in early March, the tide seemed to change.
During the arguments, Kennedy appeared to express concern that a decision to repeal the ACA subsidies would unconstitutionally coerce states to adopt new legislation in response to the rescission of their insurance markets. “Perhaps you will prevail in the plain words of the statute,” Kennedy told the challengers' lawyer, but “there's a serious constitutional problem if we adopt your argument.”
Meanwhile, despite his reputation as one of the more vocal members of the court during questioning, Roberts was relatively silent, asking just one question at the very end of the arguments that appeared to telegraph his ultimate decision. At the time, Solicitor General Donald Verrilli, representing the federal government in the case, was encouraging the court to give the Obama administration “Chevron deference” when Roberts interrupted.
“If you’re right about Chevron, that would indicate that a subsequent administration could change that interpretation?” asked Roberts. As Jeffrey Toobin, the legal analyst for The New Yorker, suggested at the time, this could be, ideologically, Roberts’ way out of the case. By voting to uphold the Obama administration’s actions, he would essentially be confirming the power of the executive branch, a principle salient to Republicans. And in the meantime, he would avoid inflicting potentially devastating damage not only on the millions of individuals whose health insurance was at risk, but also to the flow of billions of dollars through the insurance companies, drug manufacturers and healthcare providers on the exchanges.
Throughout the proceedings, President Obama had sought to tamp down concern that the law’s subsidies provision would be overturned. “I’m confident we’ll win, because the law is clearly on our side,” Obama said Monday on Marc Maron’s podcast WTF.
King was likely the last significant legal challenge to the ACA. While there are more than a dozen other ACA-related disputes pending in the federal court system, they have all been “repeatedly dismissed,” writes Timothy Jost, a professor of health care policy and law at Washington and Lee University. “The courts have held that the plaintiffs bringing these cases have not in fact suffered an injury from the laws or administration actions that they challenge, and thus the federal courts have no jurisdiction to hear their complaints. The grievances raised by these cases are political and should be addressed to the political branches, not to the courts.”
That doesn’t mean, however, that the law’s opponents will be cowed by today’s decision. The Republican-led Congress is almost certain to find new ways to challenge the legitimacy of the law.
"Obamacare is fundamentally broken, increasing health costs for millions of Americans. Today's ruling doesn't change that fact," House Speaker John Boehner said in a press release shortly after the decision. "[W]e will continue our effort to repeal the law and replace it with patient-centered solutions that meet the needs of seniors, small business owners, and middle-class families."
Congress may attempt to pass a reconciliation bill to change the law in its entirety, said Jost, or pass smaller measures to chip away at contentious provisions of the ACA, such as a “Cadillac tax” on generous health care plans.
“But anything they do will have to be signed by the president,” said Jost. For now, with Obama still in office, that means the GOP won’t be able to gain much traction. But, he added, moving forward, “everything probably depends on the next presidential election.”
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