The King v. Burwell Sham

It is June folks!  That means the U.S. Supreme Court will soon issue decisions in some of the most consequential, and controversial, cases of the term.  I’m especially antsy as I await the decision in King v. Burwell, about which I have written before.  This otherwise run-of-the-mill statutory construction case has the potential to destroy the Affordable Care Act by depriving millions of people who purchase insurance through Healthcare.gov–the federally operated exchange–of access to the same subsidies available to people who purchase insurance through state-operated exchanges.

This manufactured piece of litigation–which was instigated for no purpose other than to destroy the ACA–is based in large part on the following supposition: Congress intended to offer subsidies solely to purchasers of insurance on state exchanges as an incentive to states to create such exchanges so that persons living within their borders would be able to afford to buy health insurance.

That supposition is bogus.

As Simon Lazarus discusses in this must-read post over at Balkinization, which discusses a New York Times article, no one in Congress actually thought that is what the ACA did when it was enacted.  To the contrary:

[A]ccording to interviews with “over two dozen” Republican and Democratic senators and staff from the 111^th Congress that enacted the Affordable Car Act, everyone involved in that process, on both sides of the aisle, understood the legislation to prescribe tax credits and subsidies to needy purchasers of insurance on all state-level exchange market-places, whether such exchanges are operated by the state or federal governments.

I’m very worried about how the Supreme Court will decide this case.  It will be a split decision for sure.  For students of Justice Scalia’s opinions discussing how he thinks statutes should be interpreted, he should reject the plaintiffs’ proffered interpretation.  But I think he will side with Justices Alito and Thomas, who will undoubtedly vote in favor of the plaintiffs.  That leaves the Chief Justice and Justice Kennedy as the votes that will decide the case.  Only time will tell. . . .