What if you had a ticket to the apocalypse and a legal argument broke out instead?
That in essence was what happened at the Supreme Court Wednesday, at the long-awaited oral argument for King v. Burwell, the new challenge to the Affordable Care Act. This case is as crucial to the success or failure of the ACA as National Federation of Independent Business v. Sebelius, the 2012 decision that preserved the individual mandate. But the atmosphere at 1 First Street NE this time could hardly have been more different. The justices were civil and low-key. The argument turned on issues of law rather than on broccoli. When the hour ended, no one felt sure which way the Court would go.
The argument concerns four sections of the massive statute. Section 1501 is the “individual mandate,” which requires heads of households to obtain health insurance or pay a tax. Section 1311(b)(1) instructs that states “shall” set up “American Health Benefit Exchanges” so that their residents can find individual insurance companies to fulfill the mandate. Those individual policies would be prohibitively expensive; so Section 1401 instructs the Internal Revenue Service to provide tax credits and subsidies for millions of low- and middle-income taxpayers. If they buy policies on “an Exchange established by the State under 1311,” the credits and subsidies defray much of the cost. But it’s black-letter law that the federal government can’t order states to perform an internal act like setting up an exchange; Section 1321 addresses the situation. If a state refuses, the federal government shall “establish and operate such Exchange within the State.” In the end, 34 states decided to let the federal government do the exchange for them.