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Reactions mount following King v. Burwell; Kennedy could swing vote

Opening arguments give glimpse of where Justices stand as hospitals, states and organizations call for the law to stay.

Susan Morse, Senior Editor

King v. Burwell debate photo from Twitter user <a href="">SEUI</a>.King v. Burwell debate photo from Twitter user SEUI.

The future of Obamacare subsidies could rest with Justice Anthony Kennedy, who appears to be the swing vote after opening arguments Wednesday on King v. Burwell.

Chief Justice John Roberts, who broke the 4-4 tie in the last challenge to the ACA in 2012, was silent, according to those who sat in the Court for oral arguments that were scheduled to run for an hour but ran much longer.

Justice Kennedy said he saw “a serious constitutional” question with the challenger’s argument that states were supposed to choose between setting up their own exchanges and forfeiting the tax credits.

“This could hold the key to a win for the government,” said Sean Marotta on the American Hospital Association’s blog.

However, the outcome is too close to call, he said.

[Also: Recap our updates from today's hearing]

“For healthcare providers, the results would be a disaster, particularly for hospitals that have seen extraordinary relief as a result of the Affordable Care Act. If, all of a sudden, there were no Medicaid expansion and no subsidy markets, then all of the gains these hospitals have seen would be reversed,” said George Washington University health policy expert Sara Rosenbaum.

For more on Rosenbaum's comments, go to

The Court will decide whether subsidies are available for millions of people in over 30 states who bought health insurance through the federal exchange.  The challengers say the language of the law allows for subsidies only through states that have established their own exchanges.

Arguments fell along partisan lines, with the liberal Justices questioning the challengers’ attorney Michael Carvin and conservative justices dominating during the time when U.S. Solicitor General Donald Verrilli was defending the law and HHS Secretary Sylvia Burwell.

A decision is expected by July.

"Justices Scalia, Thomas and Alito are highly likely to vote to reverse, believing that, at best, it is the job of Congress, not the Court, to fix a defective legislative regime," said Stuart M. Gerson, an attorney with Epstein Becker Green who sat in on the proceedings. "Similarly, there can be little doubt that Justices Ginsburg, Breyer, Sotomayor and Kagan will vote to affirm, seemingly believing that the authorship of a particular Exchange doesn’t matter in the total context of the ACA."

"Justice Kennedy was particularly interested in whether the onus that the regime places on the States rises to the level of compulsion that the Court has held violates Federalism," he added.

Justice Ruth Bader Ginsburg focused on the standing of the plaintiffs, which means the law at issue directly affects the parties who brought about the complaint. Carvin argued that at least two of his clients did because they would pay tax penalties for not carrying insurance unless the Court ruled in their favor.

Carvin talked over the Justices several times, according to those who were there, to the point Justice Sonia Sotomayor admonished him to “take a breath.”

The case involves four Virginia plaintiffs, led by David King.

Republicans and groups backing the case see it as their best chance to dismantle the law.

Credit ratings agency Standard & Poor’s also weighed in on Wednesday, saying there could be possible budget implications of a decision against the government, given that economic and revenue recovery has been uneven and reserve funds have not been restored in many states.

The Kaiser Family Foundation has said 7.5 million people losing subsidies would face out-of-pocket premiums of 256 percent, a figure S&P highlighted.

Here is the full transcript of the hearing:


Twitter: @SusanMorseHFN

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