The Supreme Court will wade into the fight over Obamacare once again, this time deciding whether subsidies tied to the overhaul should be restricted to certain states under a strict reading of the law.
Justices announced Friday they would take up King v. Burwell, a case from the U.S. Court of Appeals for the Fourth Circuit.
The King lawsuit is one of several that says the Obama administration stretched the meaning of the Affordable Care Act by allowing every health exchange in the nation to dole out premium tax credits to qualified Americans.
At issue is a phrase in the law that says the subsidies are reserved for people who used an exchange “established by the state,” which challengers took to mean the 15 exchange set up by 14 states and the District of Columbia.
“The Supreme Court has the opportunity to reaffirm the principle that the law is what Congress enacts, not what the administration or others wish Congress had enacted with the benefit of hindsight,” Jonathan Adler, one of the key architects of the legal challenge, said Friday.
The stakes could not be higher for President Obama’s signature health overhaul, just two years after the justices upheld Obamacare and its mandates as constitutional.
If justices do not agree with the Obama administration’s position that every state should enjoy the subsidies, millions of Americans who shopped on Obamacare’s federally run marketplace may no longer be able to afford their premiums.
The White House issued a statement Friday lambasting the challenge as another attempt to undermine the president’s health reforms.
“The ACA is working. These lawsuits won’t stand in the way of the Affordable Care Act and the millions of Americans who can now afford health insurance because of it,” Press Secretary Josh Earnest said. “We are confident that the financial help afforded millions of Americans was the intent of the law and it is working as Congress designed.”
The law’s opponents say Obamacare’s architects used the subsidies to entice states to set up their own exchanges instead of asking the federal government to do it for them. To cover their tracks, they say, the IRS issued a rule to make it clear that all states could enjoy the subsidies.
But the law’s Democratic authors insist they meant to treat all of the states the same. The law makes it clear that the federal government stood in the shoes of states that do not want to set up their own marketplace, entitling them to subsidies as a state-based exchange, they have argued in court.
The Fourth Circuit sided with the Obama administration on the same day a three-judge panel on the D.C. Circuit ruled the opposite way, invalidating the IRS’s rule.
Drivers of the King lawsuit asked the Supreme Court to take up the case.
To add a case to its docket, at least four justices must vote in favor of it.
While it is unclear who supported Friday’s decision, four justices — Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — ruled against Obamacare in 2012.
At the time, Chief Justice John G. Roberts Jr. shocked conservatives by upholding the law’s mandate requiring Americans to hold health insurance as permissible under Congress’ taxing authority.
Obamacare’s supporters and opponents will look to see if the chief justice, appointed by former President George W. Bush, will step in and save Mr. Obama’s law once again.
By deciding to take up the subsidies challenge, the justices signaled they will not wait for the D.C. Circuit to re-hear the matter. Earlier this year, the appeals court vacated its judgement against the administration and said it would rehear the case.
The Obama administration had hoped the Supreme Court would wait until the D.C. Circuit weighed in once more, potentially siding with them and eliminating the circuit split.
This will be Obamacare’s third showdown before the high court. Earlier this year, the justices said closely held corporations do not have to insure forms of birth control they object to on moral grounds, even though Obamacare’s “contraception mandate” required them to insure 20 forms of FDA-approved contraceptives as part of company plans.
While the contraceptives issue marked a subplot in the fight over Obamacare, the subsidies challenge strikes at the heart of the reforms.
Consumers on the exchanges can get an income-based subsidy if they make between 100 percent and 400 percent of the federal poverty level. More than 80 percent of the people who signed up on the exchanges during Obamacare’s first year qualified for the assistance, making it a key selling point of Mr. Obama’s law.
The Supreme Court’s decision also comes at a politically sensitive time.
The administration is trying to get millions of Americans to re-enroll in their exchange plans or shop for the first time when Obamacare’s open enrollment season starts again on Nov. 15.
But Republicans will take full control of Congress in two months, and party’s leaders have said the law’s repeal will be a part of their legislative agenda.
On Friday, GOP lawmakers cheered the Supreme Court’s decision as a chance to hold the administration accountable for its law, which has cut the uninsured rate but remains unpopular with many Americans.
“This administration has repeatedly ignored Congress and the legislative process in order to fit their agenda and it is long past time for this President to uphold his oath to enforce the laws as written,” said Rep. Diane Black, Tennessee Republican.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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