UPDATED: SCOTUS decides not to take up King case today, but may still do so next week
2018 MIDTERM ELECTION
Time: D H M S
When I wrote about the Halbig case earlier this summer (along with its kid brother, the King case), I was pretty sure that the Supreme Court wouldn't even get around to taking up the case (if they did at all) until next year. However, there's a chance that they might take up the second of these (King v. Burwell) this year after all...although the final decision still probably wouldn't come out until after OE2 is over next spring:
Stakeholders are bracing for a decision that could come as early as Monday on whether the Supreme Court will agree to take up a lawsuit claiming that the ACA limits federal insurance subsidies to people enrolling through the state-based exchanges. Legal experts supportive of the law expressed doubt the justices would agree to review the case since there is currently no split in the appeals courts, but those supporting the plaintiffs argue that the court must hear the case as soon as possible in order to ease uncertainty.
Just to review:
- There's a section of the wording of the ACA which gives the IRS the right to give out tax credits to those who qualify.
- There's a particular sentence in a particular paragraph in this section which says that the IRS has the right to do so in healthcare exchanges "established by the state."
- The plaintiffs in both Halbig and King are claiming that "...established by the state" refers only to the 14-16 (depending on your definition) exchanges run by individual states such as California, New York, Kentucky, etc, as opposed to the other 35 - 37 exchanges being run through Healthcare.Gov.
- The IRS/HHS is arguing that "...by the state" was essentially a drafting error, and that there's like a dozen other parts of the law which make it very clear that the tax credits were intended for qualifying individuals in every state, and that furthermore there's precedent stating that in cases where the wording of the law is ambiguous, the interpretation of the government agency in question has the final call.
- The plaintiffs are basically claiming that the card says "Moops", so tough patooties; the IRS isn't allowed to give tax credits to anyone who enrolls through HC.gov.
- If the plaintiffs win, they'll essentially be imposing a multi-thousand-dollar tax hike on about 4.7 million people.
As for the timing, the Big SCOTUS Decision everyone's watching today is simply whether they'll take up the case this year at all:
Meanwhile, plaintiff's in King petitioned the Supreme Court, which was set to discuss the case on Friday (Oct. 31). An announcement on the high court's decision on whether to take up the case could come as soon as Monday.
So, will they do so? Well...
“I think it's most likely that they are going to take a pass on this one for now,” says health expert Tim Jost of Washington and Lee University. There is no circuit split and no reason why they have to take it up, he adds. Jost also points out that the court could take up the case later in the year after the lower court decisions are out.
Mother Jones, meanwhile, has a simultaneously amusing/exasperating explanation of why the plaintiffs who brought up the case in the first place are trying to pressure SCOTUS to take up the case immediately:
...the King plaintiffs are arguing that the Supreme Court should take up the case now anyway—because, well, they think it's really, really important to stop health care reform from moving forward in case it eventually turns out to be illegal.
...Ian Millhiser, a constitutional policy analyst at the Center for American Progress, says this sort of argument is common among not just birthers, but also tax protesters and other fringe litigants looking to kill off government programs. The Halbig and King plaintiffs, he says, are essentially saying, "Because we have created this crisis whereby filing this lawsuit we have raised the possibility that all of this disruption has happened, it is therefore imperative that you, Supreme Court, take this case to end all this disruption we have created."
UPDATE: Per Esther F., the SCOTUS is not taking up the King case...YET. This doesn't mean that they won't, and in fact this development apparently actually makes it more likely that they will do so, just not until next week:
This morning the Supreme Court issued orders from its October 31st Conference. At this Conference the Court considered the cert petition in King v. Burwell, the challenge to a critical Obamacare regulation that "extend[s] tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1332 of the Patient Protection and Affordable Care Act" (to borrow from the SCOTUSblog issue statement). Yet, the Court took no action in King v. Burwell. [UPDATE: As discussed below, the Court took no action in that it neither granted nor denied the petition, but it did relist the petition for this Friday's Conference.] What does this mean?
...Am I missing any other plausible explanations for the lack of action today? It's a somewhat safe bet that we'll have an answer by next week, but John Elwood's Relist Watch indicates that some cases hang around in the no-action land for a while longer. Again, no action was the best news possible for the challengers today. Not only because the only plausible alternative today would have been a loss (cert denial), but also for the point John Elwood made earlier this morning:
— John Elwood (@johnpelwood) November 3, 2014