That was the Court's basis, in 2012, for ruling that states had to be able to opt out of Obamacare's Medicaid expansion, and the challengers' view of the law's subsidies might be just as unreasonable, Kennedy suggested. And the court tries to avoid reading ambiguous statutes in ways that would make them unconstitutional.
"It does seem to me that if petitioners' argument is correct, this is just not a rational choice for the states to make, and that they're being coerced," Kennedy said.
2) John Roberts: "If you're right ÂÂ"¦ that would indicate that a subsequent administration could change that interpretation?"
Roberts didn't say much during Wednesday's argument, but the one substantive point he did address seemed to cast doubt on one of the Justice Department's strategies to win the case. Under a well-established doctrine known as Chevron deference, when a statute is ambiguous, the court often defers to the interpretation of the agency tasked with implementing it.
Solicitor General Donald Verrilli said he doesn't think the Affordable Care Act is vague about who gets subsidies. But if the Court disagrees, he said, Chevron would mean that the government still wins.
The argument has been a consistent safety net for the government; it won the previous round of this case on Chevron grounds. But it didn't get much traction Wednesday. As Roberts noted, a win based on Chevron would mean that a Republican administration could change the IRS's interpretation and still claim the same deference from the courts as it began to withhold subsidies.
Kennedy wasn't into it, either.
"If it's ambiguous, then we think about Chevron," Kennedy said. "But it seems to me a drastic step for us to say that the department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here?"
3) Samuel Alito: "So going forward, there would be no harm."
Even the conservative justices were conscious of the real-world implications if they were to strike down the HealthCare.gov subsidies, and Justice Samuel Alito floated the possibility that the Court would try to make it possible to avoid those consequences. He asked if the Court could stay its ruling until the end of the current tax year, giving states time to set up exchanges and keep the subsidies flowing.
"Here, it's not too late for a state to establish an exchange if we were to adopt petitioners' interpretation of the statute," he said during a line of questioning with Verrilli about whether states knew what would happen if they didn't set up an exchange. "So going forward, there would be no harm."
The solicitor general pointed out that the tax credits would be cut off immediately, which is when Alito proposed his solution.
"Would it not be possible, if we were to adopt petitioners' interpretation of the statute, to stay the mandate until the end of this tax year, as we have done in other cases where we have adopted an interpretation of "¦ a statute that would have very disruptive consequences?" Alito said.