Beyond King v. Burwell: Payers brace for 'death spiral'

Affordable Care Act case leaves insurers with many questions, no answers

Justice Breyer agreed: "It's not a question of connotation; it is a question of denotation. Meaning, the federal government, the secretary, is establishing a thing for the State. What is the thing? The thing that it is establishing for the State is defined as an exchange established by the state."

Read the phrase as the plaintiffs read it, Justice Sotomayor said, and "We're going to read a statute as intruding on the federal-state relationship, because then states are going to be coerced into establishing their own exchanges."

As FierceHealthPayer reported prior to the oral arguments, the federalism angle could be the saving grace for the defendants: If Congress intended to restrict subsidies to exchanges established by the state, state officials should have been warned, and they were not.

How the Justices stand

After hearing both the plaintiffs and defendants' arguments, it's pretty clear that four Justices--Ruth Bader Ginsburg, Kagan, Breyer and Sotomayor--will vote to uphold the statute. Justices Alito and Antonin Scalia appeared to lean more toward the plaintiffs. Justice Clarence Thomas was, for the most part, mute, but will likely side with the plaintiffs.

Chief Justice John Roberts said very little, so it's difficult to know what ran through his mind. Justice Anthony Kennedy appeared torn. While he somewhat did sympathize with Carvin's argument, he did express concern that the law's design created unintended consequences of coercing the states into doing something that Congress wanted. Justice Kennedy may be the swing vote.

For more:
- read the full transcript (.pdf)

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