UPDATED Tuesday 11:58 a.m. Oklahoma and five other states where the federal government operates insurance marketplaces have filed a brief in the granted case of King v. Burwell, supporting the challenge to tax credits for those shopping at the federal exchanges. The amicus brief, arguing from the perspective of state governments, is here.
The Obama administration, arguing that the Supreme Court should keep the new health care case in its present form, has resisted Oklahoma’s plea to join the case already before the Court on the merits with that state’s separate appeal. U.S. Solicitor General Donald B. Verrilli, Jr., contended that linking the two would only add complicating issues regarding the Court’s jurisdiction. The government brief, filed last Monday, is now available here.
The Court has already agreed to hear the case of King v. Burwell, testing whether lower-income individuals can get federal subsidies to help them afford health insurance in the thirty-four states where an Affordable Care Act insurance marketplace is run by the federal, rather than a state, government. The King case, filed by Virginia residents opposed to the subsidy scheme, is set for oral argument on March 4.
Oklahoma has filed its own petition, asking the Court to grant review of the separate case of Oklahoma v Burwell and schedule it along with the King case for decision before the U.S. Court of Appeals for the Tenth Circuit has a chance to review the subsidies dispute. As of now, the Tenth Circuit has put the Oklahoma case on hold, pending the outcome of the Supreme Court’s review of the King case.
Oklahoma won its challenge to federal exchange subsidies in a federal trial court in that state, and the Obama administration has filed an appeal in the Tenth Circuit Court. Other test cases are on hold in the U.S. Court of Appeals for the D.C. Circuit and in a federal trial court in Indianapolis.
The government, as well as congressional supporters of the Affordable Care Act, have contended that Congress intended the scheme or insurance subsidies to be available nationwide, and not just in the states that agreed to set up their own insurance marketplaces (technically called “exchanges”). If subsidies are not available in states where the federal government set up exchanges when the state refused to do so, that argument goes, the entire ACA insurance regime will collapse because there will not be enough covered individuals buying insurance to make the system work economically.
Oklahoma and others opposed to federal exchange subsidies have countered that Congress explicitly authorized such credits only for those buying health coverage on an exchange established by a state government. Courts have no power to expand the scheme by rewriting the ACA’s language, the challengers have asserted.
That is the conflict in interpretation that the Supreme Court has agreed to resolve. The issue is one of interpreting legislative language, and thus is not directly a constitutional dispute, although the disagreement has overtones of a dispute over the constitutional roles of Congress and the federal courts.
In asking the Supreme Court to join its appeal with King v. Burwell, Oklahoma’s lawyers argued that the Court should review the issue in a case in which a state government is directly involved, and should take on another case in the event that the King case could wash out without a decision.
The Obama administration, in its new brief, argued that neither of those claims would justify linking the two cases. The Court often takes on cases when not all of those who would be affected are direct parties, the brief said, and Oklahoma could take part by filing an amicus brief. In addition, the government noted that it has not raised any procedural issues that would keep the King case from being decided.
Moreover, the administration brief contended, there are questions about Oklahoma’s own legal right to be a challenger and that, plus other procedural complications, would only expand the Court’s review unnecessarily to address those jurisdictional questions.
Oklahoma apparently does plan to file an amicus brief supporting the challengers in the King case. It has not yet decided whether to ask the Court to allow one of its lawyers to participate in oral argument in that case on March 4.