This comment from Justice Kennedy could signal the fate of Obamacare


John Roberts and Anthony Kennedy

Reuters/Charles Dharapak

U.S. Supreme Court Justices Chief Justice John Roberts and Anthony Kennedy applaud prior to President Obama's State of the Union speech on Capitol Hill in Washington, February 12, 2013

The Supreme Court will issue a decision on President Barack Obama's signature healthcare law any day now, and Justice Anthony Kennedy made a telling comment in March that could signal how he will vote.


Kennedy, a key swing voter, said during oral arguments that he saw a "serious Constitutional" question with the interpretation of the Affordable Care Act (ACA) set forth by the plaintiffs who are trying to strike it down.

"If that's Kennedy's view of the case, there's almost no chance that the challengers can win," UCLA constitutional law professor Adam Winkler told Business Insider at the time.

The current fight over the ACA, King v. Burwell, centers on whether the US government can keep subsidizing insurance in the roughly three dozen states that have not set up their own insurance marketplaces. The health law laid out a plan in which states set up their own exchanges but said the federal government could step in and set up the exchanges for the states if they could not do it on their own.

Opponents of the law point to a part of the statute that they say suggests people can't receive subsidies unless the state set up their insurance marketplace. That part of the law says that subsidies should be issued to plans through an exchange "established by the state."


supreme court

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If the opponents win, people in those states would lose their subsidized health insurance unless the states set up their own exchanges.

Kennedy appears to have a problem with that scenario because it would effectively coerce states into setting up their own exchanges if they wanted their citizens to have insurance. Kennedy doesn't like that, because he is a big fan of federalism.

"There is a serious constitutional problem here if we adopt your position," Kennedy told the lawyer for the plaintiffs, according to The New York Times.

From SCOTUSBlog:

Simply put, Kennedy expressed deep concern with the federalism consequences of a reading that would coerce the states into setting up their own exchanges to avoid destroying a workable system of insurance in the state.


The high court will issue its opinion as early as Thursday, and all eyes will be on Kennedy and Chief Justice John Roberts, a conservative who surprised everybody in 2012 when he voted to save Obamacare.

In the 2012 case, Roberts upheld the heart of Obamacare - a mandate that people buy health insurance or pay a penalty. Roberts ruled that the penalty was the equivalent of a tax and thus constitutional.

In that case, Kennedy signed onto a lengthy dissent finding that Congress had exceeded its authority in mandating that Americans buy health insurance or pay a penalty. While Kennedy voted to destroy Obamacare just a few years ago, he may end up saving it this time around.

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