There are glimmers of hope contained in the reports of today's Supreme Court arguments in the case brought by the Competitive Enterprise Institute challenging federal subsidies to people who buy health insurance on the exchanges.
This case is all about whether the language in a statute is to be interpreted without regard to any other sections of the statute or whether context is important. Justice Elena Kagan framed a question around that very issue.
But much of the early questioning was dominated by a real-life hypothetical from Justice Kagan, suggesting that petitioner’s reading does not accord with everyday usage.
She offered (something like) the following example: Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A’s memo, and then I tell law clerk C to write such memo if law clerk A is too busy. And imagine that happens – law clerk A is too busy, so law clerk C writes it. Should law clerk B edit it? The answer seemed obvious: of course, and Justice Kagan all but told petitioner’s counsel (and her clerks) that they would be fired if they didn’t do their job under those circumstances. In response, petitioner’s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance. But that seemed to play into Justice Kagan’s hand, who made clear that this was her point – that in understanding this text, the context obviously mattered.
If Justice Kennedy or Roberts was looking for a way to uphold the law and rule against CEI, this answer could be the one they needed. I'm cautiously optimistic.
There was one other moment that also offers glimmers. Justice Kennedy went down a line of questioning that seemed to suggest he was applying the same logic that allowed for the Medicaid expansion to become optional to this case.
He pointed out that, under petitioners’ reading, the federal government would be all but forcing states to create their own exchanges. That’s true not just for the headline reason covered by this case – that their citizens would be denied benefits – but for a very perceptive reason that Justice Kennedy added: namely, state insurance systems will fail if the subsidy/mandate system created by the statute does not operate in that particular state. For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein. Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state. Justice Scalia attempted to respond on petitioners’ behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a “serious unconstitutional problem.”
Transcripts will be released later today and I intend to read them word by word. This case has been giving me heartburn and insomnia for way too long, and I want to see for myself whether this court would seriously destroy millions of people's lives just two years after they finally get some relief.