The US Supreme Court is planning to discuss on Friday if it will take on King v. Burwell, the case that would decide whether or not enrollees in the 36 states taking part in the federal insurance exchange are eligible for premium subsidies.
The case came to the court via the 4th Circuit of Appeals in Virginia, which ruled the intent of the legislation was to provide enrollees on both state and federal exchanges with subsidies. The court is slated to release a statement Monday revealing their decision to either hear the case, not hear it or re-list it, which allows them to put a decision off until a later date.
Timothy Jost, Robert L. Willett Family Professor of Law at the Washington and Lee University School of Law, said if the court chooses to take the case, it will be for strictly political reasons. And Supreme Court Chief Justice John Roberts has publicly stated his intent is to steer the court away from partisanship.
"It is impossible to separate law and politics," Jost said, "This is not a political body, it is a judicial body and they are not supposed to get involved in political battles. They should, and will, be reluctant to take it on for strictly political reasons."
It does only take four justices in agreement to accept a case and four did express opposition in their written dissent of the decision to uphold the constitutionality of the Affordable Care Act in 2012. But there are a handful of reasons why taking this case would be unusual for the court, Jost said.
First, the argument against the legislation is that it is written that Americans enrolled "through an Exchange established by the State" are eligible for subsidies. The plaintiffs said that premium tax credits should not be provided, then, through exchanges that are run through the federal government on HealthCare.gov. The Obama administration argued that the law's clear intent is to offer subsidies to all exchange enrollees, regardless of where their exchanges are managed.
Jost said that reading the law on the whole makes it very clear what the intent of the drafters meant, as the court in Virginia concluded. He said he and colleagues have identified 50 different provisions throughout the law that support the intention of providing subsidies to all state exchange enrollees. For instance, federally-facilitated exchanges are supposed to report to taxpayers how much they are eligible for in premium tax credits, he said.
"Courts can cherry-pick that one phrase and read it literally … but the Supreme Courts have told lower courts not to look at statutory construction in that way," he said. "You are supposed to look at all of the text and not just one point in it."
In cases like this, which involve statutory interpretation, Jost said the courts traditionally defer to the agency to clarify rules that are unclear rather than take it on as a constitutional matter.
The Supreme Court also typically takes cases that are split decisions, which this one is currently not. On the same day the Virginia court issued its ruling, a US Circuit Court in the District of Columbia ruled in a split decision in Halbig v. Burwell ruled that the law clearly stated subsidies were only allowed in states that had established their own exchanges. The decision was vacated in September, however, and the case is set to be heard by the court in mid December.
"At this time there is only one decision and it is unanimously upheld," Jost said.
If the court agrees to hear the case, Jost said it would have a "very destabilizing" affect on patients, employers and the healthcare industry alike.
"Applying normal rules of adjudication, they would wait," he said. "If they reach out and grab it now, it sends a signal that they are deciding based on ideology instead of based on the law, which is unfortunate for the country."