On March 4, the Supreme Court heard oral argument in King v. Burwell, a challenge to the constitutionality of the IRS’s aggressive re-writing of key terms in the Patient Protection and Affordable Care Act, sometimes known as “Obamacare.” After ninety minutes of argument, it was clear that four justices would vote to uphold the IRS re-write. The question was whether the government could pick up a fifth vote. Most of the post-argument commentary focused on Chief Justice Roberts and Justice Kennedy as possible fifth votes. Roberts kept his cards close to his chest, asking few questions that would tip his hand. So speculation focused on Justice Kennedy, who seemed reluctant to enforce the law as Congress actually wrote it since, he said, making states set up healthcare exchanges in order to receive federal subsidies might amount to unconstitutional coercion of the states. Of course, Congress coerces the states this way all the time and doing so is not unconstitutional. The Wall Street Journal appropriately called this sudden concern about state’s rights a “Hail Mary” effort to save Obamacare. But Justice Kennedy’s question shows the pressure Administration is putting the Court under to keep Obamacare going no matter its constitutional infelicities. The Court’s decision is due toward the end of June.
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