The U.S. Supreme Court will begin its new term October 6th and, once again, Obamacare could be on the docket.
The justices have been asked to weigh in on whether the Affordable Care Act’s subsidies can go to any American, regardless of whether their state runs a health insurance exchange or relies on the federal one. They’ll soon be asked, too, whether religious nonprofits have to provide contraception in employee health plans, a follow-up to last spring’s Hobby Lobby case.
And there is a third, very long-shot issue in the wings: whether the health care legislation was a tax bill that under the Constitution had to start in the House of Representatives instead of the Senate.
Most of the lawsuits stand little chance of seriously damaging the health law, let alone killing it with the exception of the challenges over the subsidies, or tax credits. This could strike at a core tool for expanding insurance coverage to millions of people who got subsidized coverage through HealthCare.gov when their governors would not or could not run a state exchange.
The challengers say that the exact wording of two parts of the law makes clear that subsidies are only allowed to go to residents of states with state-based exchanges. Obamacare backers say a thorough reading of the entire law makes clear that anyone can get subsidies, even if they live in a state that is using the federal exchange.
Lower courts have split, with two circuit courts memorably ruling opposite ways on the issue within a few hours. That kind of circuit split is typically a lock for getting strong consideration by the justices. But one of the courts — the D.C. Circuit, which ruled against the Obama administration — recently agreed to hear the case again in a rare en banc hearing.
The conventional wisdom is that the second hearing, which includes all of the court’s judges, not just the three who heard the case originally, will go for the Obama administration.
But the Supreme Court doesn’t have to wait for the en banc hearing in December and a decision likely months later. The plaintiffs that lost in the other case, which went through the 4th Circuit Court of Appeals in Richmond, have already asked the justices to weigh in.
Michael Carvin, the attorney representing the challengers, says he doubts that four Supreme Court justices will care what the D.C. Circuit — which is packed with Obama-appointed judges, he says — thinks about the case.
“I think the calculus among the justices up there will be if the D.C. Circuit, particularly along strictly partisan lines, agrees with the Obama administration, is that really going to affect our view of the underlying issue? If we don’t believe that’s true, we might as well take the 4th Circuit case now and decide it,” Carvin said last week at a Supreme Court event hosted by The Heritage Foundation.