Chief Justice Roberts, the newly insured nation turns its eyes to you.
The Supreme Court made an unexpected move into a highly politically charged case Friday, announcing that it
will hear a challenge to the Obamacare subsidy structure this session.
The Supreme Court, moving back into the deep controversy over the new health care law, agreed early Friday afternoon to decide how far the federal government can extend its program of subsidies to buyers of health insurance. At issue is whether the program of tax credits applies only in the consumer marketplaces set up by 16 states, and not at federally run sites in 34 states.
Rather than waiting until Monday to announce its action, which would be the usual mode at this time in the Court year, the Justices released the order granting review of King v. Burwell not long after finishing their closed-door private Conference.
That the court didn't wait until Monday is unusual. That the court is not waiting for the D.C. Circuit to conclude its
en banc review of the companion
Halbig v. Burwell case is also unusual. That this is happening the same week that Republicans swept Congress, largely on the promise of Obamacare repeal, is downright frightening. If the subsidies on the federal exchange are ruled unconstitutional, the structure of the law will be perhaps fatally destabilized. Millions who are receiving subsidies will lose them and will be unable to afford insurance.
In the Halbig case, the D.C. Circuit would almost certainly uphold the subsidies, as the lower courts have, with one exception. The exception is the 4th Circuit, which ruled for the plaintiffs on appeal. Normally, the Supreme Court would wait for a circuit split—two circuit courts ruling differently—before deciding to take a case. That they're not waiting for that split is not an encouraging sign for the law. As the New York Times notes:
It only takes four votes to add a case to the Supreme Court’s docket. They may have come from the four members of the court who were ready in 2012 to strike down the Affordable Care Act: Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Once again, it seems, the fate of the law will rest with Chief Justice John G. Roberts Jr.
This could be the four conservatives' way of pressuring Roberts. Or it's possible that five justices voted to hear the case now. Either way, this is not encouraging news.