Andrew Karter

HOW WILL THE SUPREME COURT DECIDE KING V. BURWELL?

TABLE OF CONTENTS
1. INTRODUCTION................................................................................................................. 1
2. METHODOLOGY AND SUMMARY OF ARGUMENT .............................................................. 1
3. BACKGROUND OF KING V. BURWELL ................................................................................. 2
A. STATUTORY TEXT ............................................................................................... 2
B. THE PARTIES AND BASIC ARGUMENTS ................................................................ 3
4. HOW WILL THE SUPREME COURT DECIDE? ..................................................................... 6
A. LOOKING BACK: NFIB V. SEBELIUS AND BURWELL V. HOBBY LOBBY ................... 6
B. PREDICTIONS BY JUSTICE: SEVEN RELIABLE VOTES............................................ 7
1. JUSTICE BREYER WILL SIDE WITH RESPONDENTS .................................... 7
2. JUSTICE KAGAN WILL SIDE WITH RESPONDENTS ..................................... 9
3. JUSTICE SOTOMAYOR WILL SIDE WITH RESPONDENTS ........................... 10
4. JUSTICE GINSBURG WILL SIDE WITH RESPONDENTS ............................... 11
5. JUSTICE SCALIA WILL SIDE WITH PETITIONERS ...................................... 13
6. JUSTICE ALITO WILL SIDE WITH PETITIONERS ........................................ 14
7. JUSTICE THOMAS WILL SIDE WITH PETITIONERS .................................... 16
C. PREDICTIONS BY JUSTICE: TWO SWING VOTES ................................................. 17
1. JUSTICE KENNEDY WILL SIDE WITH PETITIONERS .................................. 17
2. CHIEF JUSTICE ROBERTS WILL SIDE WITH RESPONDENTS ...................... 19
5. IMPACT OF KING V. BURWELL: STAKEHOLDERS AND CONSEQUENCES ............................ 20
6. CONCLUSION .................................................................................................................. 24
TABLE OF AUTHORITIES
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, (2006) ............... 15
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, (2014) ................................. Passim
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). .... 6, 18, 19,
20, 24, 25
King v. Burwell, No. 14-114 ...................................................................................... Passim
Marbury v. Madison, 5 U.S. 137 (1803) ........................................................................... 23
Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, (2012) ................................. Passim
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).............. 15, 16
Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427 (2014) ................................ 13, 14
Yates v. United States, 135 S. Ct. 1074 (2015). ................................................ 9, 13, 14, 16

A State may elect to authorize an Exchange established by the State under this section
to enter into an agreement with an eligible entity to carry out 1 or more responsibilities
of the Exchange.
- Patient Protection and Affordable Care Act, Section 1311
1. INTRODUCTION
On March 23, 2010, President Obama signed into law the Patient Protection and
Affordable Care Act (hereinafter ACA or the Act). The Act is President Obamas
signature legislative accomplishment. However, with the Supreme Court considering
King v. Burwell, crucial elements of the Act are at risk. Specifically, the Supreme Court
will determine whether the ACA allows the Federal Government to assist in paying
insurance premiums for people throughout the United States, as opposed to limiting it to
states where the Federal Government is responsible for operating the health care
exchange.1
This research paper will first provide context for King v. Burwell by introducing
the parties and the basic arguments in the case. Next, I will predict how each individual
Justice will vote, with supporting evidence and relevant analysis. I conclude that the
Court will rule 5-4 in favor of the respondents (the three government agencies
responsible for administering the Act), upholding the Act in its present form. I close with
a discussion about the stakeholders and the consequences that are likely to occur as a
result of the Supreme Courts decision.
2. METHODOLOGY AND SUMMARY OF ARGUMENT
To support my conclusion that the Supreme Court will rule 5-4 in favor of the
respondents, I present several arguments. First, I note how the Justices ruled in the
previous two cases on the ACA, NFIB v. Sebelius2 and Burwell v. Hobby Lobby3. I then
1

The words marketplace and exchange are interchangeable.

Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, (2012).
3
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, (2014).
2

proceed to analyze the political make-up of the Supreme Court and examine the likely
positions of the Justices. To support my conclusion about each Justice, I rely heavily on
questions posed during the March 4, 2015 oral argument. I focus on each Justice as he or
she grappled with the merits of the case, singling out Chief Justice Roberts and Justice
Kennedy as potential swing votes. I conclude that Chief Justice Roberts will join the four
traditionally liberal Justices (Breyer, Kagan, Sotomayor, and Ginsburg) in a concurring
opinion to vote in favor of upholding the ACA.
3. BACKGROUND OF KING V. BURWELL
(A) Statutory Text
There are three provisions in the ACA that are central to King v. Burwell.4 First,
Section 1311 of the ACA notes that [e]ach State shall, not later than January 1, 2014,
establish an American Health Benefit Exchange[.]5 Second, Section 1321 prescribes
that, if a state does not establish an Exchange, the U.S. Department of Health and Human
Services (HHS) shall establish and operate such Exchange within the State.6 Finally,
26 U.S.C. 36B(b)(2)(A) and (c)(2)(A) note that the premium subsidy amount is based
on the cost of a qualified health plan . . . enrolled in through an Exchange established by
the State under 1311[.] (Emphasis added).7
The main issue in King v. Burwell is the whether the federal government may
establish an exchange (also called a marketplace) for individuals to purchase health
insurance where state governments refuse to do so.8 The text of the ACA holds that
4

MaryBeth Musumeci, Kaiser Family Foundation, Are Premium Subsidies Available in

States with a Federally-run Marketplace? A Guide to the Supreme Court Argument in
King v. Burwell (2015), http://kff.org/health-reform/issue-brief/are-premium-subsidiesavailable-in-states-with-a-federally-run-marketplace-a-guide-to-the-supreme-courtargument-in-king-v-burwell/.
5
Patient Protection and Affordable Care Act, 1311, 42 U.S.C. 18031(b)(1).
6
Id. at 1321, 42 U.S.C. 18041(c)(1).
7
26 U.S.C. 36B(b)(2)(A), 26 U.S.C. 36B(c)(2)(A).
8
See supra note 4 at 2.
2

individuals of a certain income bracket are qualified to receive premium assistance tax
credits to purchase insurance through an Exchange established by [a] State under
1311 [of the ACA].9 A strict textualist reading of this language implies that the credits
may only be used if insurance is provided by a state. Accordingly, the petitioners
challenge the legality of a 2012 Internal Revenue Service (IRS) rule that clarified the
ACA text, holding that the federal government could set up exchanges for individuals to
purchase premium assistance tax credits in the 34 states that did not establish their own
exchanges. Essentially, the petitioners argue that the ACA expressly disallows the
federal government from setting up these exchanges where states have chosen not to do
so.
(B) The Parties and Basic Arguments
There are two relevant mandates within the ACA. First, the individual mandate
requires individuals to purchase health insurance meeting federally defined minimum
standards.10 If individuals do not meet these standards, they are subject to a tax.11
However, those whose annual insurance premiums would exceed eight percent of their
household adjusted gross income would be exempt from the tax.12
Second, the employer mandate obliges employers of 50 or more employees to
offer health insurance coverage for full-time workers as well as their dependents.
Employers are fined if they compel their employees to contribute more to their coverage

See supra note 4 at 2 (citing 26 U.S.C. 36B).

Andrew Kloster and Alden Abbott, The Heritage Foundation, King v. Burwell and the
Mandates: What Happens If the Supreme Court Rules Against the Administration?
(2015), http://www.heritage.org/research/reports/2015/03/king-v-burwell-and-themandates-what-happens-if-the-supreme-court-rules-against-the-administration.
11
This was the key finding in NFIB v. Sebelius.
12
See supra note 4 at 2.
10

than what is considered affordable.13 When individuals have not received health
insurance from their employer, they can purchase insurance on exchanges.14
Specifically, the petitioners in King are four individuals who are challenging the
Acts minimum coverage provision.15 They contend that they should not have to buy
health insurance in Virginia, which is a state with a federally-facilitated marketplace.16
They claim that the least expensive unsubsidized Marketplace plan available to them
would be greater than eight percent of their anticipated income for 2014, which would
exempt them from the Acts tax penalty.17 The petitioners chief argument is that the IRS
does not have authority to issue the regulation making subsidies available to people who
have purchased their insurance through a federally-facilitated exchange. Instead, they
argue that the IRS rule is invalid because the Acts language explicitly states that the
credits are only available in State-based Marketplaces.18
The respondents in this case are the federal agencies that implement the ACA:
HHS, the Treasury Department, and the IRS. They argue that established by the State
can also mean established by the Federal Government standing in as a surrogate for the
State.19 This interpretation is in large part based on how the respondents urge the word
such should be defined within the context of section 1321 of the ACA, which as
mentioned supra, prescribes that the Federal Government (here the HHS) shall establish
and operate such Exchange within the State. (Emphasis added). The respondents
contend that the word such here refers to the required Exchanges in section 1311.
They urge that petitioners, in quoting the words established by the State in section 36B
13

Id.
Id.
15
See supra note 10 at 1.
16
See supra note 4 at 2.
17
Id. at 3.
18
Id.
19
Id. at 4.
14

on premium subsidies, misconstrue the statute by excluding the full context: established
by the State under section 1311.20
The respondents argue that the section 1311 text which states that [e]ach state
shall . . . establish an [exchange] (emphasis added),21 relates to section 1321, entitled
State Flexibility in Operation and Enforcement of Exchanges and Related
Requirements. (Emphasis added).22 They highlight that section 1321 allows a state to
elect to establish the exchange itself, but if the state chooses not to, the exchange is
nevertheless required.23 Thus, respondents contend that the federal government may
step in to create such [required] Exchange.24 In support of their statutory construction
argument respondents cite to Blacks Law Dictionary to define such as [t]hat or those;
having just been mentioned.25
To summarize, the basic analysis that the Supreme Court is likely to follow may
be outlined in three parts. First, as a threshold issue, the Court should consider whether
the petitioners even have standing to bring a case, based on whether the four individual
petitioners have suffered any recognizable injuries.26 Second, if the Court finds that the
petitioners have standing, it must next decide whether the Act clearly authorizes subsidies
in states with federally-facilitated marketplaces. If the Court finds in the affirmative, the
inquiry is over: the IRS rule will remain in place, and subsidies will be available in states
regardless of whether or not the exchanges were set up by state governments or the
federal government. However, if the Court finds the statute ambiguous and accordingly
20

Transcript of Oral Argument at 60, King v. Burwell, No. 14-114 (All page numbers for
citations to the transcript from the oral argument come from the transcript provided by
http://www.scotusblog.com/case-files/cases/king-v-burwell).
21
Patient Protection and Affordable Care Act, 1311, 42 U.S.C. 18031(b)(1).
22
Patient Protection and Affordable Care Act, 1321, 42 U.S.C. 18041(c)(1).
23
Brief for Respondent at 14, King v. Burwell (2015) (No. 14-114).
24
Id.
25
Id.
26
Transcript of Oral Argument at 3, King v. Burwell, No. 14-114 (as demonstrated infra,
Justice Ginsburg was particularly inquisitive about this issue during oral arguments).
5

concludes that there is no clear authorization, it must as a final step determine whether it
should defer to the IRS rule under the classic Chevron deference test.27 Again, if the
answer is yes, the rule stands. If the Court decides in the negative, the rule will be held
invalid and 34 states that have federally-facilitated marketplaces will no longer offer
subsidies.28
4. HOW WILL THE SUPREME COURT DECIDE?
(A) Looking Back: NFIB v. Sebelius and Burwell v. Hobby Lobby
King v. Burwell is the third challenge to the ACA. Unlike King, which deals with
statutory interpretation, the first two cases were constitutional challenges to the Act.
Despite this key difference, it is worthwhile to briefly examine how each Justice voted in
prior cases involving the ACA. This is particularly important because the Court
frequently splits on partisan lines.
In 2012 the Supreme Court heard NFIB v. Sebelius. In NFIB, the Court decided
on the ACAs individual mandate and Medicaid expansion.29 A 5-4 majority found that
the individual mandate was a constitutionally permissible way for Congress to levy taxes,
but also put states in charge of Medicaid expansion within their borders.30 Chief Justice
Roberts was the deciding vote in favor of the government. He was joined by Justices
Ginsburg, Breyer, Sotomayor, and Kagan. Dissenting were Justices Scalia, Kennedy,
Thomas, and Alito.31

27

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (Chevron
set forth the legal test that is used to determine whether a government agencys
interpretation of a statute should be granted deference).
28
See supra note 4 at 6 (the impact of a ruling for petitioners is discussed at greater
length in Section 5, infra).
29
Kaiser Family Foundation, A Guide to the Supreme Courts Affordable Care Act
Decision, http://kff.org/health-reform/issue-brief/a-guide-to-the-supreme-courtsaffordable/.
30
See supra note 4 at 8.
31
NFIB v. Sebelius, 132 S. Ct. 2566, (2012).
6

In 2014, the Court again heard a challenge to the ACA. This time, the Court ruled
5-4 against the government, holding that requiring family-owned corporations to pay for
insurance coverage for contraception under the ACA violated a federal law protecting
religious freedom.32 Again, Chief Justice Roberts was the deciding vote, this time
against the government. He was joined by Justices Alito, Scalia, Kennedy, and Thomas.
Dissenting were Justices Ginsburg, Sotomayor, Breyer, and Kagan.33
(B) Predictions by Justice: Seven Reliable Votes
Turning to an examination of the oral argument, it should be noted that a Justices
questions are not always indicative of how he or she will vote, especially given the fact
that the Court has months following oral arguments to deliberate. Nevertheless, oral
argument presents a unique opportunity to gauge how the Justices are thinking about the
question presented, and which issues they consider to be most relevant. Examining
questions posed at oral argument can be particularly valuable where, as here, Justices
may appear to accept or reject arguments presented by either side.
Given the highly partisan issue of health care, it is unsurprising that the Courts
more typically liberal wing was more active during the petitioners oral arguments.
Justices Breyer, Kagan, Sotomayor, and Ginsburg were more active in their questioning
during this portion of the argument.34 Conversely, Solicitor General Verrilli, counsel for
the respondents, was primarily questioned by Justices Scalia and Alito.35
(B)(1) Justice Breyer will Side with Respondents

32

Adam Liptak, Supreme Court Rejects Contraceptives Mandate for Some Corporations,
N.Y. TIMES, June, 30, 2014, www.nytimes.com/2014/07/01/us/hobby-lobby-casesupreme-court-contraception.html?_r=0.
33
Burwell v. Hobby Lobby, 134 S. Ct. 2751, (2014).
34
Transcript of Oral Argument, King v. Burwell, No. 14-114.
35
Id.
7

The liberal-leaning Justice Breyer, reacting to counsel for petitioner Michael

Carvins36 statutory interpretation of the phrase established by the state, made his
thoughts on the case known early:
As I read the definition [in the Definitions section of the Act] . . . the term
Exchange means an exchange established under 1311. And 1311 says
an Exchange shall be a government agency . . . that is established by a
State[.] So then you look to 1321, [which] says if a State does not set up
that Exchange, then the Federal secretary shall establish and operate such
Exchange. So the statute tells the Secretary, set up such Exchange,
namely, a 1311 State Exchange[.] So whats the problem?37
Justice Breyer here makes no attempt to hide his predisposition in favor of the
respondents reading over that of the petitioners. Moreover, Breyer asked no questions of
the respondents.
Justice Breyer further commented that looking at the overall context of the Act
makes the petitioners argument weaker.38 He observed that accepting the petitioners
argument would be to cause exchanges to fall apart because there would be no
customers. He also pointed out that the employer mandate would be rendered irrelevant
as employers would no longer need to pay penalties.39
Finally, Justice Breyer (along with Justice Kagan) allowed Carvin extra time to
respond to his concern that the petitioners reading of the ACA would create so-called
anomalies. As one of several examples, Breyer noted how employers in a state with a
federally-facilitated marketplace would not have to pay the employer mandate penalty
unless one of their employees lives in a state that has set up its own exchange.40

36

Carvin unsuccessfully represented the petitioners in NFIB v. Sebelius.

Transcript of Oral Argument at 7-8 King v. Burwell, No. 14-114.
38
Id. at 13.
39
Id. (this is described at greater length infra in section 5).
40
Id. at 30-31.
37

For the abovementioned reasons, I therefore predict that Justice Breyer, as he did
in the 2012 NFIB case and the 2014 Hobby Lobby case, will once again side with
government in this case.
(B)(2) Justice Kagan will Side with Respondents
Justices Breyer and Kagan were on the same page in terms of statutory
interpretation. Justice Kagan reiterated Breyers point that context weakens the
petitioners case: the answer . . . really does depend on context, and it depends on an
understanding of the law as a whole[.] I agree with that. (Emphasis added).41 Justice
Kagan continued:
We look at the whole text. We dont look at four words [referring to
established by the state]. And I think what were suggesting is that, if
you look at the entire text, its pretty clear that you oughtnt to treat those
. . . words in the way you are. (Emphasis added).42
Justice Kagan, in emphasizing overall statutory context, was echoing her dissent
from a case decided just a week prior to the oral argument. In February 2015, the
Court issued its opinion in Yates v. United States.43 Justice Kagans dissent,
notable in that it was joined by Justices Scalia, Thomas, and Kennedy, included
the following language:
I agree with the plurality (really, who does not?) that context matters in
interpreting statutes. We do not construe the meaning of statutory terms
in a vacuum . . . rather, we interpret particular words in their context and
with a view to their place in the overall statutory scheme.44
Carvin responded by arguing that there are many federal statutes that
require states to take certain actions or else forgo certain federal benefits, citing
Medicaid as an example. When Justice Ginsburg attacked this point by noting
that those situations were distinguishable as grants in aid programs that do not
41

Id. at 11-12.
Id. at 37-38.
43
Yates v. United States, 135 S. Ct. 1074 (2015).
44
Id. at 1092 (Kagan, J., dissenting).
42

contain a federal fallback, Carvin replied that exchanges could still work without
the subsidies.45 To this point, Justice Kagan pointed out that Carvin had made
precisely the opposite argument in 2012 when he advocated for the petitioners in
NFIB:
Thats not what you said previously when you were here last time in this
never-ending saga. You said . . . without the subsidies driving demand
within the Exchanges, insurance companies would have absolutely no
reason to offer their products through Exchanges. And then you said the
insurance Exchanges cannot operate as intended by Congress absent the
subsidies.46
Carvin had no choice but to accept Kagans remark, though he did respond that
Congress intended all 50 states to take this deal.47
For the foregoing reasons, I therefore predict that Justice Kagan will join
Justice Breyer and again side with the government here, as she did in 2012 and
2014.
(B)(3) Justice Sotomayor will Side with Respondents
Justice Sotomayor, who also voted for the government in NFIB and Hobby Lobby,
made several criticisms of the petitioners argument here. In particular, she noted her
concern that the petitioners reading of the ACA presents federalism problems:
Im a little concerned with how you envision this provision working . . . .
If we read it the way youre saying, then were going to read a statute as
intruding on the Federal-State relationship, because then the States are
going to be coerced into establishing their own Exchanges . . . . In those
States [where] citizens dont receive subsidies, were going to have the
death spiral that this system was created to avoid. [States and insurers] are
obligated to make sure that in their States, whether theyre part of this
program or not, that they have guaranteed coverage . . . . Tell me how that
is not coercive in an unconstitutional way?48

45

Transcript of Oral Argument at 19-20, King v. Burwell, No. 14-114.

Id. at 21.
47
Id.
48
Id. at 14-15.
46

10

Justice Sotomayor resoundingly rejected the petitioners argument that there was no
legislative history suggesting that such a death spiral would occur without subsidies.
Instead, she expressed her belief that the whole purpose that drove [the ACA] was to
prevent states from entering such a spiral.49
Justice Sotomayor further expressed her disbelief that the states truly understood
that allowing the federal government to set up an exchange would prevent citizens of
those states from receiving their subsidies.50 She rejected Carvins argument that there
was no legislative history indicating Congress felt premium subsidies were necessary to
the viability of the Exchanges, noting that Congress would not have placed a provision
preventing the Federal Government from establishing exchanges in a mouse hole.51 In
other words, Justice Sotomayor questioned whether a provision carrying the meaning
assigned by the petitioners would have been included in a section of the ACA dealing
with the calculation of tax credits. Carvin also faced heavy scrutiny on this issue from
other Justices. Justice Kagan flatly rejected Carvins argument that this was not a
mouse hole.52 Justice Ginsburg further noted that the provision was not where it
should be if it meant what the petitioners claimed.53
Given all of the above, I predict Justice Sotomayor will vote in favor of the
government here, as she did in NFIB and Hobby Lobby. The above also reinforces my
conclusion about Justices Kagan (supra), and Ginsburg (infra).
(B)(4) Justice Ginsburg will Side with Respondents
Justice Ginsburg represents the Courts fourth and final reliably liberal Justice.
Like Breyer, Kagan, and Sotomayor, Ginsburg voted with the majority in favor of
49

Id. at 2.
Id. at 23.
51
Id.
52
Id. at 24.
53
Id.
50

11

respondents in NFIB, and with the dissent in Hobby Lobby.54 However, here Justice
Ginsburg took her line of questioning a step further than Justices Breyer, Kagan, and
Sotomayor. Before attending to the merits of the case, Justice Ginsburg leapt to question
whether the petitioners even had standing.55 Justice Ginsburg questioned whether the
four individual petitioners had a concrete stake rather than an ideological stake in the
proceedings.56 In other words, without a recognizable injury to the petitioners, there was
no basis for the case to be in front of the Court. Ultimately, Justice Ginsburg found
herself without much support from her fellow Justices on the issue. Even General
Verrilli for the respondents conceded that he was willing to accept . . . that there is a
case or controversy here, [which is why] we havent raised standing.57
Thus, given the respondents willingness to forgo an argument over standing, it
seems probable that Justice Ginsburg will have little foundation to base her eventual vote
on that issue. Nevertheless, her eagerness to attack the very foundation of the petitioners
case unsurprisingly indicates the liberal Justices preference to side with the government.
With respect to the merits, Justice Ginsburg paved the way for the respondents by
pointing out to Carvin that section 1321 explicitly provides for state flexibility.58
Ginsburg made no attempt to hide her skepticism of the petitioners chief argument:
You can have your program if you want it, and if you dont, theres a
fallback. Theres the Federal program. I mean, thats a typical pattern.
Its the pattern of the Clean Air Act. You can have a State implementation
plan, but [if the State doesnt follow through], theres a Federal
implementation plan. I have never seen anything like this where . . . if you
take what the statute says you can have in 1321, then you get these
disastrous consequences. (Emphasis added).59
54

NFIB v. Sebelius, 132 S. Ct. 2566, (2012); Burwell v. Hobby Lobby, 134 S. Ct. 2751,
(2014).
55
Transcript of Oral Argument at 3, King v. Burwell, No. 14-114.
56
Id.
57
Id. at 44.
58
Id. at 19.
59
Id. at 19-20.
12

General Verrilli graciously accepted Justice Ginsburgs gift, echoing this point in his
presentation by emphasizing that section 1321 makes an express textual promise of State
Flexibility.60
Given Justice Ginsburgs reliably liberal leanings, her votes in favor of the Act in
NFIB and Hobby Lobby, her forceful attempt to challenge the petitioners standing in this
case, and her evident rejection of the petitioners chief argument, I conclude that Justice
Ginsburg will side with the respondents in this case.
(B)(5) Justice Scalia will Side with Petitioners
If the respondents do, as expected, earn the votes of Justices Breyer, Kagan,
Sotomayor, and Ginsburg, they will only need to attract one more vote to prevail. They
will not receive that vote from the conservative Justice Scalia, known for being a strict
textualist. However, as discussed above, Justice Scalia joined Justice Kagans dissent in
Yates, which argued for a broad contextual reading of statutes.61 Thus, just one week
prior to the oral argument in King v. Burwell, Justice Scalia favored a more broad form of
statutory interpretation. Moreover, in Utility Air Regulatory Group v. EPA, Scalia wrote
that it is a fundamental canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the overall statutory scheme.62
One might therefore expect that Scalia would accept the respondents argument that the
use of the word such in section 1321 relates back to the required exchanges in section
1311. Nevertheless, I conclude that Justice Scalia will side with petitioners.
Despite Justice Scalias recent support for a contextual approach to statutory
construction, he twice made an about-face during oral arguments for King v. Burwell.
First, he pressed General Verrilli by noting that if a [statute] can only reasonably mean
60

Id. at 44.
See supra note 43.
62
Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427 (2014).
61

13

one thing, it will continue to mean that one thing even if it has untoward consequences
for the rest of the statute, no?63 General Verrilli responded by reasoning that Justice
Scalias logic is correct, but subject to a limiting principle: [where there is a] conflict
within a statutory scheme, then the Courts got to do its best to try to harmonize and
reconcile the provisions.64 Well, Scalia responded seemingly in contrast to the Yates
dissent and his opinion in Utility Air, I disagree with that.65 Second, he rejected that
the word such in section 1321 could relate back to section 1311, going so far as to call
the suggestion gobbledygook.66
Moreover, Justice Scalia rejected the governments argument with respect to
Congressional intent. When General Verrilli argued that Congress could not have
intended for the ACA to include language that would revoke[s] the promise of
affordable care for millions of Americans,67 Scalia responded dismissively: Of course it
could [have] . . . . The question is whether its the statute that they wrote. There are no
provisions in the statute that turn out to be ill-considered and ill-conceived.68
For the foregoing reasons, and given his votes against the government in NFIB
and Hobby Lobby, I conclude that Justice Scalia will distinguish or more likely ignore
the Yates dissent and Utility Air and side with the petitioners in this case.
(B)(6) Justice Alito will Side with the Petitioners
Justice Alito has never broken with the conservative bloc of the court to side with
the liberal members in a 5-4 decision.69 It is unlikely that he would start with a case on
the ACA. Thinkprogress.org, an admittedly liberal publication, asserts that Justice Alito
63

Transcript of Oral Argument at 47, King v. Burwell, No. 14-114.

Id.
65
Id. at 48.
66
Id. at 65.
67
Id. at 45.
68
Id.
69
SUPREME COURT DATABASE, http://supremecourtdatabase.org (last visited April 23,
2015).
64

14

is more likely to be struck by lightning while committing in-person voter fraud than he
is to vote with the respondents in King v. Burwell.70
Interestingly, Justice Alito previously authored an opinion that seems to stand in
direct contrast to the petitioners position in King. In Arlington Central School District
Board of Education v. Murphy, Alito cited the Pennhurst Doctrine, which holds that
Congress may not impose unexpected or new obligations on federal grants.71 In
Arlington, Alito wrote that when Congress attaches conditions to a States acceptance of
federal funds, the conditions must be set out unambiguously . . . . In other words, we
must ask whether [there is] clear notice regarding the liability at issue.72
Despite the above, Justice Alito showed a clear predisposition during the oral
argument in favor of the petitioners. With respect to Pennhursts notice requirement, he
commented that there was still time for a state to establish an exchange without any
problem going forward.73 In the alternative, he asked the respondents to address whether
it was possible to avoid a notice problem by staying the mandate as a remedy:
Would it not be possible if we were to adopt Petitioners interpretation of
the statute to stay the mandate until the end of this tax year as we have
done in other cases where we have adopted an interpretation of the
[Constitution] or a statute that would have very disruptive
consequences[?]74
Given this line of questioning, it is evident that Justice Alito is searching for a way to
avoid the Pennhurst Doctrine in this case.
Lastly, several times throughout the course of oral arguments, Justice Alito
supported the petitioner while questioning the respondents interpretation of the ACA.
70

Ian Millhiser, The Odds that Each Justice Will Vote to Destroy Obamacare, THINK
PROGRESS, (Mar. 2, 2015) http://thinkprogress.org/justice/2015/03/02/3628103/justicelikely-vote-case-obamacare.
71
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296, (2006) (citing
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)).
72
Id.
73
Transcript of Oral Argument at 52, King v. Burwell, No. 14-114.
74
Id. at 53.
15

First during the petitioners argument, he defended Carvin against a hypothetical posed
by Justice Kagan that was intended to demonstrate that state and federal exchanges were
identical.75 During the respondents argument, Justice Alito peppered General Verrilli
with questions, asking: if Congress did not want the phrase established by the State to
mean what that would normally be taken to mean, why did they use that language?76
The foregoing suggests that Justice Alito, a staunch conservative with a consistent
record of voting alongside Justices Scalia and Thomas, would avoid the Pennhurst
Doctrine and vote against the ACA, as he did in NFIB and Hobby Lobby.
(B)(7) Justice Thomas will Side with Petitioners
Justice Thomas is known for his silence on the bench during oral argument, and
the present case was no exception.77 Thus, it is impossible to gain any insight as to how
he views any particular case via oral argument alone. Regardless, Justice Thomass vote
in King v. Burwell will undoubtedly be in favor of the petitioners.
Like Justice Scalia, Justice Thomas joined the Kagan dissent in Yates, decided a
week before King v. Burwell was argued. But also like Scalia, Thomas has a consistently
conservative voting record, and is widely expected to vote against the government here.78
Indeed, a study by the New York Times revealed that over a four-year period ending with
the Supreme Courts 2014 term, Thomas voted with Justices Scalia and Alito 91 percent
of the time.79

75

Id. at 11.
Id. at 60.
77
Jeffrey Toobin, Clarence Thomass Disgraceful Silence, THE NEW YORKER, Feb. 21,
2014, http://www.newyorker.com/news/daily-comment/clarence-thomass-disgracefulsilence.
78
See, e.g., Adam Liptak, At Least One Justice Is in Play as Supreme Court Hears
Affordable Care Act Case, N.Y.TIMES, March 4, 2015,
http://www.nytimes.com/2015/03/05/us/supreme-court-arguments-health-care-law.html.
79
Jeremy Bowers et. al., Which Supreme Court Justices Vote Together Most and Least
Often, N.Y.TIMES, July 3, 2014,
16
76

Therefore, I conclude that Justice Thomas will side with petitioners. In keeping
with his conservative credentials, Thomas has twice voted against the ACA, dissenting in
NFIB and voting with the majority in Hobby Lobby.
(C) Predictions by Justice: Two Swing Votes
Justice Kennedy and Chief Justice Roberts represent the two potential swing votes
in King v. Burwell. If the votes by the seven Justices discussed above conform to my
predictions, then the respondents would only need one more vote to prevail. Justice
Kennedy has twice voted against the ACA, siding with the dissent in NFIB and the
majority in Hobby Lobby. Chief Justice Roberts was the swing vote in both cases, voting
with the government in NFIB and against it in Hobby Lobby. I predict that these trends
will hold: Justice Kennedy will side with the petitioners in this case, and Chief Justice
Roberts will be the tiebreaking vote in favor of the respondents.
(C)(1) Justice Kennedy will Side with Petitioners
Justice Kennedy made it clear that he was concerned with Carvins argument
from a Federalism standpoint. He noted that:
There is something very powerful to the point that if [the petitioners]
argument is accepted, the States are being told either create your own
Exchange, or well send your insurance market into a death spiral. Well
have people pay mandated taxes which will not get any credit on the
subsidies. The cost of insurance will be sky-high . . . . It seems to me that
under your argument, perhaps you will prevail in the plain words of the
statute, there is a serious constitutional problem if we adopt your
argument. (Emphasis added).80
Kennedy later reemphasized his concerns to General Verrilli: it does seem to me that if
Petitioners argument is correct, this is just not a rational choice for the States to make

http://www.nytimes.com/interactive/2014/06/24/upshot/24up-scotus-agreementrates.html?abt=0002&abg=1.
80
Transcript of Oral Argument at 16, King v. Burwell, No. 14-114.
17

and that theyre being coerced . . . . And then you have to invoke the standard of
constitutional avoidance.81
Notwithstanding Justice Kennedys concerns, he acknowledged that it may well
be that you are correct as to these words, and theres nothing we can do.82 Thus, Justice
Kennedy indicated that his vote would primarily rest on his understanding of the statutes
text itself. To that end, based on his subsequent questions, Kennedy did not appear to
accept the governments textual arguments. Specifically, when General Verrilli argued
that section 1311 should be cross-referenced with section 1321, Justice Kennedy
commented: that seems to me to go in the wrong direction for your case.83
Moreover, Justice Kennedy expressed strong skepticism as to General Verrillis
Chevron deference argument:
If [the statute] is ambiguous, then we think about Chevron. But it seems
to me a drastic step for us to say that the Department of Internal Revenue
and its director can make this call one way or the other when there are . . .
billions of dollars of subsidies involved here? (Emphasis added).84
Justice Kennedy thus appeared unprepared to accept the notion that Congress would have
deferred a decision of such drastic importance to the IRS to create its own rule. It
follows that Justice Kennedy would not be likely to uphold the ACA on the basis of
Chevron deference.
To summarize, if Justice Kennedy is to vote in favor of the respondents, he will
likely do so on the grounds of constitutional avoidance. However, if he is to vote in favor
of the petitioners, he will likely do based on a primarily textual interpretation of the
statute. Given his two votes opposed to the ACA in NFIB and Hobby Lobby, and given
his apparent acceptance during the oral argument that textual arguments should prevail
81

Id. at 49.
Id. at 18.
83
Id. at 61 (unfortunately for the purposes of this analysis, Justice Kennedy did not
elaborate, as Justice Alito cut General Verrillis answer off).
84
Id. at 74.
82

18

over constitutional arguments, I predict that Justice Kennedy will vote for the petitioners
in this case.
(C)(2) Chief Justice Roberts will Side with Respondents
Interestingly, the normally vocal Chief Justice Roberts was relatively silent during
oral argument. His only substantive question arose toward the very end of Solicitor
General Verrillis presentation, and also concerned Chevron deference. Solicitor General
Verrilli argued that Chevron gave the Obama Administration authority to interpret the
law as permitting subsidies via federal exchanges. At this point, nearly 80 minutes into
the extended oral argument, the Chief Justice finally broke his silence. If youre right
about Chevron, he asked, that would indicate that a subsequent administration could
change that interpretation? Solicitor General Verrilli acknowledged that a future
administration could indeed do just that.85 However, he did so tentatively likely
because he was aware that a decision resting on Chevron deference would leave open the
opportunity for a future Republican administration to dismantle the ACA.
Commentators have noted that General Verrillis answer to the Chief Justices
question suggests a route out of the case for Roberts.86 It was widely speculated
following NFIB that the Chief Justice switched his vote, and that he was heavily
influenced to do so by a desire to maintain the Courts credibility. The Chief Justice was
almost certainly aware . . . of his leadership role on the court, and . . . to how the Court
is perceived by the public.87
As I will discuss at greater length infra, a Supreme Court victory for the
petitioners would have highly disruptive consequences, as millions would lose their
85

Id. at 76.
Jeffrey Toobin, Did John Roberts Tip His Hand? THE NEW YORKER, March 4, 2015,
http://www.newyorker.com/news/daily-comment/did-john-roberts-tip-his-hand.
87
Jan Crawford, Roberts Switched Views to Uphold Health Care Law, July 2, 2012,
http://www.cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/.
86

19

insurance and access to federally subsidized premiums. Chief Justice Roberts knows he
has the power to prevent state markets from descending into what Justices Sotomayor and
Kennedy both called a death spiral. After voting with the majority to save the ACA in
NFIB, Roberts would be hard pressed this time to rule that individuals in 34 states should
be ineligible for subsidies.
The stakes are simply too high for the Chief Justice to pull the rug out from the
ACA. His interest in Chevron deference suggests a path of least resistance. I expect that
he will take it, thereby securing victory for the respondents by a 5-4 vote.88
5. IMPACT OF KING V. BURWELL: STAKEHOLDERS AND CONSEQUENCES
A ruling for the petitioners in this case would not strike down the entire Act, but it
would strike down the IRS rule providing tax credits to those who are insured through
federally-facilitated marketplaces.89 The political, economic and social causes of such a
ruling would be dramatic and far-reaching. If the Supreme Court overturns the IRS rule,
individuals who would have already selected an insurance plan through federal
exchanges within the 34 states that refuse to establish their own state exchange would
feel an immediate and direct impact by losing their coverage. The number of people that
would likely be affected is estimated to be anywhere between 5.5 million90 and 7.5
million.91

88

Specifically, I predict that the Chief Justice will join the four liberal Justices in a
separate, concurring opinion. I expect that his concurrence will focus more heavily on
Chevron deference, while the four liberal Justices will minimize this interpretation for the
same reason that Roberts will likely support it: because a future administration could
attempt to change the IRS rule.
89
See supra note 10 at 1.
90
Id. at 2.
91
Editorial, What Ending Health Subsidies Means, N.Y. TIMES, Mar. 7, 2015,
http://www.nytimes.com/2015/03/08/opinion/sunday/what-ending-health-subsidiesmeans.html.
20

Additionally, an estimated 12.5 million people are eligible for premium subsidies
in the 34 states.92 A ruling for the petitioners would eliminate access to these subsidies,
likely causing many current insureds to drop their insurance plans because of cost
concerns. Such consequences would lead to significant turbulence in the affected states
or as Justices Sotomayor and Kennedy put it in the oral argument, death spiral[s].93
A November 2014 study of subsidized coverage under the ACA by the Kaiser
Family Foundation predicted that more than half of the insureds (approximately 6.7
million) would come from five states: Florida, Texas, North Carolina, Georgia, and
Pennsylvania.94 Of these five states, only Pennsylvania has a Democratic Governor who
supports the ACA and who would likely act to set up a state exchange in the event that
the petitioners prevail.95
Another dramatic consequence of a Supreme Court victory for petitioners is that it
would essentially invalidate the employer mandate, affecting up to 57 million people.96
As the Kaiser Family Foundation study reflects, [t]he penalty associated with the
employer mandate is triggered when a full-time employee is not offered employersponsored coverage and qualifies for a marketplace premium or cost-sharing subsidy.97
Thus, if such subsidies were made unavailable, no penalty can be triggered and the
employer mandate would become toothless.

92

See supra note 4 at 8.

Transcript of Oral Argument at 16, King v. Burwell, No. 14-114.
94
Drew Altman, How 13 Million Americans Could Lose Insurance Subsidies, WALL
STREET JOURNAL, Nov. 19, 2014, http://blogs.wsj.com/washwire/2014/11/19/how-13million-americans-could-lose-insurance-subsidies/.
95
David Wenner, If SCOTUS rules against Obamacare subsidies, Wolf could move to
protect Pa., PENNLIVE.COM, Nov. 17, 2014,
http://www.pennlive.com/midstate/index.ssf/2014/11/lawsuit_supreme_court_obama_su.
html.
96
King v. Burwell: U.S. Supreme Court Preview of the Next Challenge to the Affordable
Care Act, THE FEDERALIST SOCIETY, (Feb. 26, 2015) (downloaded using iTunes).
97
See supra note 4 at 9.
21
93

A ruling for the petitioners would also be massively disruptive to hospitals and
stakeholders that would lose out on expected revenues from the newly-insured.98 RAND
Corporation, a nonpartisan think tank, predicted that eliminating subsidies in the 34
relevant states would have the effect of increasing average premiums by $1,610 to a total
of $5,060 per individual, a 47% increase.99
Finally, a victory for the petitioners would be profoundly embarrassing for the
Obama Administration. Many Republicans would view this as a victory, and President
Obamas influence in Congress, to the extent any remains in the twilight of his
Presidency, could diminish even further. However, with so many people losing their
benefits, Republicans would be under enormous pressure to propose a viable alternative
to the present ACA. Congress would be pressured to act, and if it does not, the
Republican presidential nominee would be expected to present his or her plan for
ensuring stability. If the public is not satisfied with this plan (or lack thereof), it is
reasonable to assume that fixing the ACA will become a major campaign issue in the
next election.
If the petitioners win, one potential fix would be for Congress to adopt Justice
Alitos suggestion to stay the mandate until the end of [the] tax year.100 If the Court
chooses to stay its ruling through the 2015 tax year, Congress would have to decide how
to act for 2016. Commentators point out that by the spring of 2015, insurance companies
will have to start filing their proposed premiums for 2016 without knowing how to

98

See supra note 91.

Evan Saltzman and Christine Eibner, The Effect of Eliminating the Affordable Care
Acts Tax Credits in Federally Facilitated Marketplaces, RAND CORPORATION, (Jan. 6,
2015),
http://www.rand.org/content/dam/rand/pubs/research_reports/RR900/RR980/RAND_RR
980.pdf (average premiums are based on 40-year-old nonsmokers who purchasing a
silver plan).
100
See supra note 74.
22
99

accurately price their products, as they would not know the fate of subsidies in 2016.101
Thus, disruption of state health care systems would still be a distinct possibility. Given
that King v. Burwell presents an issue of statutory interpretation, Congress could also
attempt to fix the law by enacting clarifying legislation. However, given the fact that
many republicans are adamantly against the ACA, such an approach is not reasonably
foreseeable.
Though unlikely, President Obama, as a last resort, may consider taking matters
into his own hands to protect his signature accomplishment. If the petitioners are
successful in upending the ACA, the Obama Administration can take the dramatic step of
choosing to comply with the judgment only with respect to the four individual
plaintiffs.102 William Baude, a professor of law at the University of Chicago notes that
while this tactic is admittedly radical, it is nevertheless permitted by the Constitution,
which gives judicial power to decide cases and controversies.103 He further argues
for the viability of this tactic by noting that Marbury v. Madison . . . affirmed the power
of judicial review by relying on the Supreme Courts duty to decide particular cases.104
Of course, if this tactic was undertaken by the administration, it would
undoubtedly precipitate a multitude of similar suits calling for the same treatment under
the doctrine of stare decisis, based on the newly-established precedent from King.
On the other hand, finding additional plaintiffs might not be as easy as it sounds
because the vast majority of the population benefiting from the ACA are tax credit
101

Avik Roy, Did Samuel Alito Throw Republicans An Obamacare Lifeline At The
Supreme Court? FORBES, Mar. 6, 2015,
http://www.forbes.com/sites/theapothecary/2015/03/06/did-samuel-alito-throwrepublicans-an-obamacare-lifeline-at-the-supreme-court/.
102
William Baude, Could Obama Bypass the Supreme Court? N.Y.TIMES, Mar. 17, 2015,
http://www.nytimes.com/2015/03/17/opinion/could-obama-bypass-the-supremecourt.html.
103
Id.
104
Id. (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).
23

recipients who have little incentive to protest the very law that subsidizes their
insurance.105
A move by the Obama Administration to limit the application of a negative ruling
in King would be sure to set off a political firestorm. President Obama will have to
decide for himself if stepping in in such a radical manner would be worth the political
capital he would be forced to spend. Accordingly, even if the petitioners win, the Obama
Administration will likely not test Professor Baudes theory for two reasons. First, the
political response could be strong, and could potentially cripple the Presidents agenda
for the remainder of his lame duck term. Second, as noted supra, the Democratic Party
could have a strong message in the run-up to 2016. Democrats will be able to place
blame for the resulting death spirals squarely on the Republicans.
6. CONCLUSION
King v. Burwell is no ordinary case. A ruling for the petitioners would undo a
crucial element of the defining legislative achievement of the sitting President of the
United States. More importantly, millions of individuals insurance plans hang in the
balance across 34 states. The votes of seven Justices of the Supreme Court are all but
decided on this case. Consequently, two swing votes separate millions of Americans
across 34 states from a highly disruptive ruling. Chief Justice Roberts is fully aware of
what will happen if the Court rules against the ACA in this case. Thus, I predict that he
will ultimately vote in favor of the respondents. Specifically, I predict the Chief Justice
will write separately from the four liberal justices in a concurring opinion based on the
doctrine of Chevron deference.
In this way, Roberts will have accomplished three goals. First, he will have saved
the state insurance markets across the country from destructive death spirals. Second,
105

Id.
24

in preventing these death spirals by retaining the law that he himself saved as the swing
vote in NFIB, he will protect the Court from severe public scrutiny. Finally, he will have
maintained at least a measure of personal credibility among his fellow conservatives by
leaving the door open for a future administration to change the IRS rule. Fortunately for
the Obama Administration, the longer the ACA becomes ingrained into American law,
the more difficult it will become for a future administration to change it. Thus, even a
victory for the government based on Chevron deference is likely to keep the ACA intact
for the foreseeable future.

25