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Obamacare's Biggest Threat Isn't the Election. It's a Supreme Court Case Being Discussed Today.

Mark Wilson/Getty Images News

Control of the U.S. Senate for the next two years will depend on what voters decide when they cast their ballots next Tuesday. But the success of Obamacare may hinge more on what the justices of the Supreme Court decide when they meet in private on Friday morning.

It’s their regularly scheduled conference—their chance to discuss which cases to hear, which to turn away, and which to ponder for a while longer. Among the cases they will consider this time is King v. Burwell. If they make a decision one way or another, to take the case or to reject it, they will announce it either Monday or the following Monday. But it's possible they will decide to ponder the case for a while longer, in which case they will "re-list" it. (My thanks to Nicholas Bagley and some other friends at the University of Michigan Law School for explaining the possibilities to me.)

King is one of four similar cases now moving through the judiciary system. The lawsuits claim that the federal government can’t legally provide tax credits for buying insurance in states where officials have decided not to run their own marketplaces, leaving that job to the feds. Why? The lawsuits suggest this is what the architects of the law intended. (If you want to know how supporters of the lawsuits come to that conclusion, you can read this paper by Michael Cannon and Jonathan Adler.)

At the moment, only 16 states plus the District of Columbia run their own marketplaces. The other 34 don't, which means the people now getting tax credits in those states, more than 4 million of them, would lose that money if the lawsuits succeed. That'd be a huge deal. The tax credits, worth hundreds or even thousands of dollars a year, are what make it possible for these people to afford coverage in the first place. Take away those subsidies and many become uninsured and the system in those states more or less collapses—an outcome that supporters of the lawsuits have said openly they desire.

King came through the Fourth Circuit Court of Appeals, based in Richmond, Virginia, where a three-judge panel ruled unanimously to reject the lawsuit. The plaintiffs in the case have appealed and it's their petition the justices are pondering on Friday. Initially, the plaintiffs could cite the fact that another appellate court considering a similar case, the D.C. Circuit in Halbig v. Burwell, had ruled the other way in a two-to-one decision. Splits between Circuit Courts have traditionally been grounds for the Supreme Court to hear a case. But the full D.C. Circuit subsequently announced that it was suspending that ruling, pending a new, en banc hearing before the entire panel of active judges. That means there’s no split anymore.

The justices could still decide to take the case, though. That may explain the timing of an op-ed that appeared in the Washington Post on Thursday. The article made a now-familiar argument—that Congress never intended to deprive some people of subsidies, just because they lived in states where officials didn’t want to run marketplaces. But the article was noteworthy for who wrote it. The byline had five members of the U.S Congress—and not just any old members. They were the chairman of the five committees, two in the Senate and three in the House, that actually wrote the bill. Particularly when it comes to complex legislation like the Affordable Care Act, plenty of lawmakers don’t have a sophisticated understanding of what they are considering. But the chairmen and ranking members of the key committees certainly do. And in the op-ed, they made very clear what their intentions had been:

None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces. In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government.

This was actually the first time I’ve seen that House fact sheet. It’s a strong piece of evidence, because it’s contemporaneous. But the issue shouldn’t really be in doubt anymore. There are other contemporaneous documents, after all. Pretty much everybody who worked directly on writing the legislation has said the same thing: They understood the law to be providing tax credits to people in every state, full stop. That’s also the recollection of the journalists who covered the debate most closely, and it’s consistent with a ton of circumstantial evidence.

While not all of that evidence is part of the official judicial record, some is—enough, I would think, to make the case pretty clear-cut. But it takes only four votes to grant a hearing and, as we learned in the individual mandate cases, there are at least four justices very hostile to the law.

Jonathan Cohn

News from Thursday

EBOLA: In Maine, Doctors Without Borders volunteer Kaci Hickox continues to fight with authorities over her “voluntary quarantine,” but she did finally get a pizza she ordered. (Nina Golgowski, New York Daily News)

LGBT: Apple CEO Tim Cook wrote in an essay in which he publicly aknolwedged his sexuality for the first time and said he is “proud to be gay.” (Bloomberg Businessweek)

CLIMATE After founder of the Weather Channel John Coleman (who is no longer affiliated with the company) said on Fox News that he doesn’t believe in climate change, the channel issued a statement confirming that climate change is, in fact, real. (Matt SchiavenzaAtlantic)

Articles worth reading

Get ready for overtime: Nate Silver says the numbers suggest both Georgia and Louisana will need runoffs to settle their midterm races, which probably means control of the Senate won't officially be known for a few more weeks. (FiveThirtyEight)

Everyone’s a little bit partyist...right? Jon Chait defends his aversion to the idea of his children marrying Republicans. (New York)

Security in the digital age. Americans are more afraid of credit card hacking than they are of getting mugged, burglarized or much much any other crime, writes Anand Katakam. (Vox)

Keep your friends close… Ted Cruz encourages Time readers to punish Obama’s party at the voting booth next week after the publication of Jeffrey Goldberg’s article that revealed some lost love between the U.S. and Israeli governments.

Stories we'll be watching

The final days of the midterm campaign


Rebecca Leber zooms in on one Michigan congressional race that is being flooded with outside funding. Alec MacGillis looks at a larger trend: the GOP seems to be back in bed with Wall Street. Armand Sprecher defends his colleague Dr. Craig Spencer, who was recently diagnosed with Ebola after treating patients in Africa. Jonathan Cohn remembers former Boston Mayor Thomas Menino, who died on Thursday, as a great leader and a great liberal.