King v. Burwell: a discouraging mid-argument report [UPDATED] [WITH FINAL UPDATE]

[Valin]

Power Line:

Paul Mirengoff

March 4, 2015

 

Eric Citron at Scotusblog provides a mid-argument report on King v. Burwell, the vital Obamacare case being heard by the Supreme Court today. According to Citron, the petitioners, who argue that subsidies are not available on the federal exchange faced a troubling question from Justice Kennedy, on whose vote the case may very well turn.

 

(Snip)

 

UPDATE: The argument that petitioners lack standing to challenge the statute has not gone well. Of note, Justice Sotomayor seemed to reject. This might mean she wants to the Court to rule on the merits because she’s confident now the government will win.

 

FINAL UPDATE: According to the Washington Post’s account of the oral argument, the government lawyer faced hostile questioning only from Justices Scalia and Alito. Chief Justice Roberts reportedly never tipped his hand. And, as noted above, Justice Kennedy’s questioning suggests that he more likely than not will uphold subsidies for those purchasing insurance on the federal exchange.

 

So Obamacare may well dodge another bullet. If so, it shouldn’t come as a major surprise. Unlike the four liberal Justices, who are basically on a political mission, the right-of-center group includes independent-minded Justices, and can’t really be considered a bloc when it comes to big cases.

[Valin]

Supreme Court oral argument: Kennedy leaning towards White House’s view on ObamaCare subsidies?
Allahpundit

March 4, 2015

 

Every lawyer who reads Hot Air will start shouting at their screen when they read that headline that you can’t tell how a judge is leaning by what he says at oral argument. Maybe Kennedy’s actually pro-challenger in this case and just wants to iron out one wrinkle in their argument before voting with them! Could be, but don’t forget that the last time O-Care was before the Supreme Court, Kennedy sounded verrrry skeptical of the individual mandate in oral argument, going so far at one point as to ask whether it wouldn’t make more sense to nuke the entire statute rather than try to salvage parts of it if the mandate was held unconstitutional. And in the end, that’s exactly how he voted — the mandate is unconstitutional and the entirety of ObamaCare deserves to be flushed. Kennedy’s oral-argument tea leaves in that case were spot on. Worth noting.

 

As hopefully all grassroots conservatives know by now, the issue in the Halbig case (now known as King v. Burwell) is what the ObamaCare statute means when it says that federal subsidies for premiums are available to anyone who buys their insurance on an exchange “established by the State.” More than 30 states chose not to build their own exchanges so the federal government built an exchange of its own for residents of those states, a.k.a. Healthcare.gov. The question: Are subsidies available for consumers who buy their plans from that federal exchange or are they only available to people who buy from an individual state’s exchange? If it’s the latter, millions of people will suddenly lose their premiums, making their plans unaffordable; as customers drop out, insurers will lose the revenue they need to pay for sick customers’ treatment and the entire ObamaCare scheme could collapse.

 

So which way is Anthony Kennedy, eternal swing voter, leaning? Hmmmmm:

 

(Snip)