Justice Anthony Kennedy today posed questions that suggested a rationale for him to oppose a lawsuit before the Supreme Court that could destroy Obamacare.
Kennedy, along with Chief Justice John Roberts, is one of two justices whose votes on the case will likely decide it. Both would have to side with Obamacare opponents for the law to be struck down. The case was argued before the Supreme Court today.
The case, King v Burwell, will turn on whether the Justices accept the clear language of the law, which states that Obamacare subsidies are only available to states that set up exchanges. Most states did not, leaving the federal government to set up its own exchange for people in those states. This, the challengers claim, is illegal. If that’s correct, then millions who have subsidies under the federal exchange will lose them, and Obamacare could collapse.
Opponents of the suit generally claim that the law, though it says otherwise, was in fact meant to provide subsidies people in states that did not set up exchanges.
But, resorting to what ironically is a tenet of conservative philosophy – states’ rights – Kennedy posed another problem, saying that the requirement states set up exchanges to receive subsidies might constitute an undue burden imposed by the federal government on the states.
If he finds the requirement unconstitutional because the consequences of not setting up an exchange are too severe, he may hold that the law cannot issue this requirement, and therefore states must receive subsidies whether they have exchanges or not.
Roberts, whose vote saved Obamacare the last time it was before the Court, remained mostly silent and did not indicate which way he leaned.