What Obama’s comments on King v. Burwell tell us about the case’s outcome.
Supporters of the Affordable Care Act gather in front of the Supreme Court during a March 4 rally in Washington, D.C. The justices are expected to decide on the constitutionality of Obamacare subsidies by the end of the month.
President Barack Obama in recent days has stumped in favor of his signature health care law and even second-guessed its review by the Supreme Court – choices some commentators questioned, given that the fate of his Affordable Care Act is expected to be revealed before the end of the month by justices who almost certainly have arrived at a verdict
Obama appears to be laying out his plans to the public and to his opponents so they know what to expect from the administration regardless of the outcome. But, analysts say, while the court has likely decided the fundamental issue, the president might yet have the opportunity to sway certain parts of its decision to his favor in a manner that could go a long way in determining the scope of the ruling or the timing of its implementation.
“There are nuances that have not been decided, but the big picture of who is going to win or lose has been decided,” says James Blumstein, professor of constitutional law and health law and policy at Vanderbilt Law School. “The president may have an effect tinkering around the edges.”
Obama’s recent remarks in two separate forums during the past week have projected confidence that his administration will win the case, King v. Burwell, but they also put onus on the Republican opposition regardless of the outcome. If the administration loses, the White House has said it will be up to congressional Republicans to repair the consequences. If the administration wins, the White House expects congressional Republicans to back off.
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Republicans, however, are engaging in the same type of rhetorical spin, having introduced their own laws to repeal and replace the Affordable Care Act and suggesting the law is hurting Americans. But analysts say the political theater that surrounds the issue is fairly routine in contentious cases and is unlikely to sway the justices.
“This kind of thing is conventional and normal when you get near the end of the term and a big case,” says Lyle Denniston, a reporter for SCOTUSblog. “This kind of outside noise is not going to make any difference on the outcome.”
The case centers on whether plaintiffs’ arguments that middle- and low-income adults who purchased health insurance through the federally run Healthcare.gov marketplace are entitled to subsidies. The language of the law, they argue, says tax credits are only to be distributed for online marketplaces “established by the state.”
If the Supreme Court rules in favor of the plaintiffs, about 6.4 million Americans will lose their health insurance because they will no longer be able to afford it, according to the Department of Health and Human Services.
Obama has not been shy about weighing in. At a G-7 meeting in Germany last week, he said the Supreme Court never should have taken up the case in the first place and that if it ruled against the administration it would be a result of a “contorted reading of the law.” Opinions were mixed as to the appropriateness of a sitting president weighing in on a pending Supreme Court case. He expressed confidence that the court would rule in favor of the administration, as it did in 2012 when the justices upheld the law’s most controversial provision requiring Americans to buy health insurance or pay a tax penalty.
Tuesday, at the Catholic Health Association’s 100-year anniversary event in Washington, D.C., Obama used moral and religious language to justify the health care law.
“There’s something just deeply cynical about the ceaseless, endless, partisan attempts to roll back progress,” he said, referring to the Supreme Court case as well as the continued efforts by Republicans to repeal and replace the law.
Denniston called the optimism shown by the administration “a bit of whistling in the dark.” He added: ”They don’t have any more information than you and I do, but it’s not politically kosher for them to say they will lose.”