Those watching for hints of what might happen in oral argument in King v. Burwell, the challenge to the Affordable Care Act that raises questions about the validity of tax credits for moderate- and low-income Americans who buy their health insurance on federal exchanges as opposed to state exchanges, were struck by a moment in the first half-hour of oral arguments when Justice Anthony Kennedy began to speak. Turning to Michael Carvin, who was arguing the case on behalf of four Virginia plaintiffs, Kennedy—the notorious swing vote and also a monster states’ rights fretter—asked whether there wasn’t a “serious constitutional problem if we accept your argument.” Kennedy went on to paraphrase an argument that has been made in the supplemental briefs and the media: That you can’t give the states a huge federal treat and then yank it away, like Lucy with the football. As Kennedy put it: “If your argument is accepted, the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.”
This line of questioning can certainly be read several ways, but it suggests that Kennedy’s mind is not completely made up, and that he is worried about the states’ rights issues raised in the amicus briefs supporting the Obama administration. Moreover, it also hinted that Kennedy would be willing to look past the plain meaning of the “four simple words” in the statute —“established by the State”—and assess both the larger context of what the law intended to do, and what unforeseen results it might have for the states.
It’s hard to overstate how very grimly Justice Kennedy viewed the whole Obamacare project the last time the court looked at the statute, in 2012. And to be sure, he asked tough questions of Solicitor General Donald Verrilli this morning. But to the extent that anyone believed that Chief Justice John Roberts was the only one to watch in this appeal, this morning Kennedy gave them someone else to talk about: Kennedy.