Supreme Court gets a do-over on health-care law

WASHINGTON – After the U.S. Supreme Court heard arguments Wednesday on a case filed against the federal government that could effectively overturn Obamacare, reaction from the right was cautiously optimistic but wary, while reaction on the left was somewhat panicked.

But it may those on the right who should have greater cause for concern, for two reasons:


U.S. Supreme Court Chief Justice John Roberts

Justice Anthony Kennedy, the somewhat conservative justice usually considered the swing vote on a court otherwise evenly divided four-to-four, expressed reservations about whether ruling for the plaintiffs would cause “serious constitutional problems” of coercion.Chief Justice John Roberts did not ask any questions on the government’s position in the case, setting off alarms for conservatives. They remember all-too-well how he shocked the world by casting the deciding vote in a 5-to-4 ruling in National Federation of Independent Businesses v. Sebelius, upholding the constitutionality of the Affordable Care Act, on June 28, 2012.

Hans von Spakovsky, senior legal fellow at the conservative think-tank the Heritage Foundation, told WND, “I think this case is a cliff hanger.”

The plaintiffs in King v. Burwell claim subsidies issued by Obamacare should be provided only by a health-care exchange “established by a state,” which is the plain wording of the law.

That would mean the federal government could not subsidize policies bought on the federally run exchange used by customers in the 36 states that didn’t set up their own exchanges.

And that would likely cause Obamacare to virtually collapse.

The Supreme Court will announce its ruling in June.

Reports from Wednesday’s oral arguments suggested that liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan were sympathetic to the administration’s arguments, while conservatives Antonin Scalia, Clarence Thomas and Sam Alito appeared likely to back the petitioners in the case.

“It is pretty clear from their questioning that the four liberal justices are going to vote for the government,” said von Spakovsky. “They spent all their time in their questions trying to avoid the purely statutory text interpretation issue (which is a clear loser for the government) and drumming up hysteria about the dire consequences if they find against the government.

“I think Scalia and Alito will find against the government, but Kennedy could go either way and Roberts was keeping his cards covered, too.”

Chief Justice John Roberts, who is normally an active questioner during oral arguments, was noticeably quiet on Wednesday. Gayle Trotter, a lawyer and columnist who made headlines in 2013 for her passionate defense of gun rights before the Senate Judiciary Committee, told WND that might have been a deliberate strategy by Roberts after his prominent role in saving Obamacare in his 2012 ruling that determined the individual mandate was constitutional through the power of Congress to levy taxes.

“Because of that and the significant pressure that has been put on by all sorts of elite academics and media folks on John Roberts that they think was successful in the first go-around of this Obamacare fight, I think he’s holding his cards very close to his chest,” Trotter said.

Trotter sees this case as a golden opportunity for a do-over for Roberts. In a Washington Times column this week, Trotter likened the second court fight over Obamacare to the flubbed oath of office Roberts rendered to Obama in 2009. She said this is obviously a much more consequential opportunity to right something Roberts clearly got wrong in 2012.

Written by GARTH KANT
Read more at WND

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