The Supreme Court is in the middle of hearing arguments in a case that could gut Barack Obama’s signature health reform law, and legal experts are focusing on one comment from Justice Anthony Kennedy.
Kennedy, a key swing voter, said during the first half of oral arguments on Wednesday morning that he sees a “serious Constitutional problem” with the interpretation of the Affordable Care Act (ACA) set forth by the plaintiffs who are trying to strike it down.
“If that’s Kennedy’s view of the case, there’s almost no chance that the challengers can win,” UCLA constitutional law professor Adam Winkler told Business Insider.
The current fight over the Affordable Care Act (ACA) centres around whether the federal government can keep subsidizing insurance in the roughly three dozen states that have not set up their own insurance marketplaces. The health reform law laid out a plan where states set up their own exchanges but said the federal government could step in and set up the exchanges for the states if they couldn’t do it on their own.
In reality, 34 states have not set up their own exchanges. Now opponents of Obamacare are claiming the law only allows subsidies in states where a healthcare exchange has been “established by a state.”
If the opponents win, people in all of those states would effectively lose their health insurance unless they set up their own exchanges. Justice Kennedy appears to have a problem with that scenario because it would effectively coerce states into setting up their own exchanges if they wanted their citizens to have insurance. Kennedy doesn’t like that because he’s a big fan of federalism.
Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state.
The high court will issue its opinion in the next few months, and all eyes will be on Kennedy and Chief Justice John Roberts, a conservative who surprised everybody in 2012 when he voted to save Obamacare.
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