The consensus about the latest Supreme Court case involving the Affordable Care Act is that the two key votes are Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. The rest of the Supreme Court justices appeared to be split along ideological lines during oral arguments yesterday over whether the statutory language in the health law only allows federal subsidies to consumers who bought their health insurance through a state-run exchange, not the federal exchange.
The Washington Post's Robert Barnes reports that Kennedy said there was a constitutional problem with the interpretation of Obamacare that states had to create their own exchanges or the federal government would "'send your insurance market into a death spiral'" by taking away their subsidies. That is coercive pressure that the federal government is not allowed to apply, Kennedy said. Barnes further reports that "Kennedy brought up the 'standard of constitutional avoidance.' That means that if there are two possible interpretations of a statute, judges should choose the one that is plainly constitutional instead of the one that raises constitutional questions."
Roberts, who was the swing vote in upholding the constitutionality of Obamacare, did not ask any questions that provided insight into his leanings on the case, Barnes reports.
A ruling against the Obama administration would result in 7.5 million Americans losing their subsidies, Barnes also reports.