U.S.

At Least One Justice Is in Play As Court Hears Health Case

By ADAM LIPTAKMARCH 4, 2015

WASHINGTON — The Supreme Court on Wednesday took up the Affordable Care Act in one of the most anticipated arguments of the term, and it seemed closely divided over the fate of President Obama’s signature legislative achievement.

The court’s four liberal members voiced strong support for the administration’s position. But Chief Justice John G. Roberts Jr., who cast the decisive vote to save the law in 2012, said almost nothing on Wednesday, and did not indicate his position.

In a pleasant surprise for the administration, however, Justice Anthony M. Kennedy, who was in dissent in 2012, made several comments indicating that his vote was in play.

“Perhaps you will prevail in the plain words of the statute,” he told a lawyer for the challengers. But, he continued, “there’s a serious constitutional problem if we adopt your argument.”

Wednesday’s arguments suggested that the coming months will be tense for the administration as it waits to hear whether about seven million low- and middle-income people in some three dozen states will continue to receive subsidies to help them buy health insurance. Should the court rule that subsidies were not authorized by the health law, most of those people would no longer be able to afford insurance. And insurance markets in those states could collapse.

Josh Earnest, the White House press secretary, said it would be “unwise” to draw conclusions based on the questioning by the justices. Such efforts, he said, can produce “some erroneous predictions about the likely outcome.”

After the 2012 arguments, many commentators said the law was doomed. It survived.

The court is not likely issue its decision in the case, King v. Burwell, No. 14-114, until late June or early July. The 2012 health case ruling came on the last day of the term.

Michael A. Carvin, who represented the plaintiffs in the 2012 case, was back at the lectern on Wednesday, again facing the administration’s top appellate lawyer, Solicitor General Donald B. Verrilli Jr.

The argument, which lasted some 80 minutes rather than the usual hour, started with a presentation from Mr. Carvin that was tied closely to the text of the law.

“This is a straightforward case of statutory construction where the plain language of the statute dictates the result,” he said. He was referring to a provision in the law that seems to say that subsidies are available only to people living where the insurance marketplaces, known as exchanges, had been “established by the state.”

Mr. Carvin faced a barrage of questions from the court’s liberal wing focusing on the health care law as a whole.

“We don’t look at four words,” Justice Elena Kagan said. “We look at the whole text, the particular context, the more general context, try to make everything harmonious with everything else.”

Justice Stephen G. Breyer echoed the point.

“If you want to go into the context,” he told Mr. Carvin, “at that point it seems to me your argument really is weaker.”

Justice Sonia Sotomayor said Mr. Carvin’s reading of the law would have devastating consequences. “We’re going to have the death spiral that this system was enacted to avoid,” she said.

Those kinds of observations from those justices were unsurprising. Justice Kennedy’s comments were another matter.

He repeatedly asked whether Congress had the constitutional authority to make states choose between setting up their own insurance exchanges and letting their citizens lose tax subsidies to help them buy insurance.

“Your argument raises a serious constitutional question,” he told Mr. Carvin.

Justice Kagan made a similar point, saying that a properly drafted law would have made the choice more stark. “That’s not the clarity with which we require the government to speak when it’s upsetting federal-state relations like this,” she said.

Mr. Carvin’s style is brash and impatient, and some of the justices tried to slow him down. “Take a breath,” Justice Sotomayor told him at one point.

Justice Kagan tested Mr. Carvin’s reading of the law with a hypothetical question involving three of her law clerks. Suppose, she said, that she asked Will to write a memorandum and asked Elizabeth to edit it. “And then I say,” she said, “ ‘Amanda, listen, if Will is too busy to write the memo, I want you to write such memo.’ “

“Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?” Justice Kagan asked.

Her question tracked the structure of the health care law, which requires the federal government to step in when states decline to establish their own exchanges.

Mr. Carvin gave a vague answer, and Justice Samuel A. Alito Jr. provided a different one.

“ ‘This is a great memo, who wrote it’?” he imagined asking the clerks. “Would the answer be, ‘It was written by Will, because Amanda stepped into Will’s shoes?’ “

Justice Kagan seemed impressed. “He’s good, Justice Alito,” she said.

She reminded Mr. Carvin that he had a different position on the subsidies in the 2012 case.

“You said the insurance exchanges cannot operate as intended by Congress absent the subsidies,” she said.

Chief Justice Roberts suggested a reason for Mr. Carvin’s shift in position.

“Mr. Carvin, we’ve heard talk about this other case,” the chief justice said. “Did you win that other case?”When the laughter died down, Chief Justice Roberts added, “So maybe it makes sense that you have a different story today?”

Four plaintiffs, all from Virginia, sued the administration, saying they did not want to be forced to buy insurance. The subsidies, they said, made them subject to the law’s requirement that they buy insurance or pay a penalty. If not for the subsidies, they said, they would have been eligible for a hardship exemption from the penalty.

Both lawyers discussed whether the plaintiffs had suffered the sort of direct injury that gave them standing to sue. But the court did not seem likely to dismiss the case on standing grounds.

Mr. Verrilli gave a forceful argument that had none of the halting quality of parts of his 2012 appearance before the court. He said the challengers’ interpretation “produces an incoherent statute that doesn’t work” and “revokes the promise of affordable care for millions of Americans.”

“That cannot be the statute that Congress intended,” he said.

But Mr. Verrilli had to walk a fine line in response to Justice Kennedy’s concerns that the law may violate the Constitution.

“I’m not prepared to say to the court today that it is unconstitutional,” Mr. Verrilli said. “It would be my duty to defend the statute.”

But Mr. Verrilli added that the doctrine of constitutional avoidance, which requires courts to try to interpret laws to avoid constitutional problems, supported the administration’s reading of the law.

But for that doctrine, Justice Kennedy seemed inclined to reject the administration’s position. “That seems to me to go in the wrong direction for your case, not the right direction,” he said on hearing Mr. Verrilli’s interpretation of the law.

Justices Alito and Antonin Scalia were consistently critical of the administration’s position. Justice Clarence Thomas asked no questions but was in dissent in the 2012 case.

Justice Scalia said the law “means what it says” even if that has “disastrous consequences.”

“How can the federal government establish a state exchange?” he asked. “That is gobbledygook.”

He added that Congress could promptly address a ruling rejecting the subsidies. “You really think Congress is just going to sit there while all of these disastrous consequences ensue?” he asked.

Mr. Verrilli sounded skeptical. “Theoretically they could,” he said.

Justice Alito said states could act, too.

“It’s not too late for a state to establish an exchange if we were to adopt petitioners’ interpretation of the statute,” he said. “So going forward, there would be no harm.” Justice Alito added that the Supreme Court could defer the effective date of its decision.

Mr. Verrilli responded that it was “completely unrealistic” for states to be able to move fast enough even with additional time.