King v. Burwell, on which the Supreme Court heard oral arguments March 4, is the most politically important case on the High Court’s docket this term. If the King petitioners win a decision in their favor, it could explode the massive 2010 federal health care overhaul known as Obamacare, by removing subsidies for Obamacare-compliant health-insurance policies in most states.
And for that reason, King v. Burwell has generated a lobbying blitz in the liberal media of seemingly unprecedented proportions. It began even before the King petitioners asked the Supreme Court last July 31 to review a ruling against them by the Fourth U.S. Circuit Court of Appeals and is unlikely to stop until the justices issue their own decision, probably at the end of June. Some of the press output touches on the actual issues of statutory interpretation and federalism that the King case raises. But the bulk of the lobbying, in newspapers, magazine articles, websites, and blogs, has consisted of belittling the petitioners, ridiculing the legal theories that their lawyers have put forth, impugning the motives of conservative and libertarian activists involved in the litigation, engaging in argumenta ad misericordiam designed to make the High Court feel sorry for the 8 million people who might not be able to afford Obamacare-mandated health insurance should the King petitioners prevail, and appealing to the amour-propre of various of the nine Supreme Court justices.
Behind all of this is that dreaded health insurance-industry term of art: the “death spiral.” It’s what happens when premiums rise so high that increasing numbers of relatively healthy people choose to go uninsured, but insurance companies are barred—as they are under Obamacare—from denying coverage to people who are already sick. The pool of the insured shrinks, premiums skyrocket (discouraging still more healthy people from buying policies), and, finally, the insurers either go bankrupt or flee, leaving nobody with coverage.
At issue in King are the five words “exchange established by the state” in a provision of the 974-page Patient Protection and Affordable Care Act that requires the Internal Revenue Service to give tax-credit subsidies to people of modest means to help them pay the sky-high premiums for “comprehensive” coverage mandated elsewhere in the Obamacare law, as long as they buy their policies through an “exchange,” a regulated marketplace where they can comparison-shop. Section 1311 of the Obamacare law allows states to set up their own exchanges—but a surprising number of them, 36, declined to do so, so the federal government set up exchanges in those states under another Obamacare provision, Section 1321. Then, in 2012, the IRS issued a regulation that extends the subsidies to policies purchased from either state or federal exchanges—a regulation that lawyers for the King petitioners insist flies in the face of the statutory words “established by the state.” They and their supporters argue that permitting the IRS regulation to stand means the executive branch of government has the power to override the plain meaning of a law passed by Congress just about whenever it feels like it.
The Fourth Circuit, which has jurisdiction over Virginia, home of the four King petitioners and a state that did not set up an exchange, ruled nonetheless last July 22 that, when read in conjunction with other parts of the Obamacare law that seemed to encourage subsidies, the five contested words were more ambiguous than they looked at first glance. The Fourth Circuit upheld the IRS regulation under a principle called “Chevron deference” (the name comes from a landmark Supreme Court ruling). That principle requires courts in most cases to defer to a federal agency’s interpretation of the law, as long as that interpretation is “reasonable.” But that very same day, another federal appeals court, for the D.C. Circuit, ruled 2-1 in another lawsuit challenging the IRS regulation, Halbig v. Burwell, that the five statutory words in question meant exactly what they said.
So—let the lobbying begin! Supreme Court lobbying takes two forms. One is the time-honored practice of filing an amicus curiae, or “friend of the court,” brief raising legal issues and policy considerations that might not have been argued in the lower courts by the parties themselves. Both the Fourth Circuit and the Supreme Court have been flooded with amicus briefs in the King case—according to the Court’s own website, 57 of them have been filed.