By Brandon Bub
Nov. 9, 2014
This turned out to be a more of an eventful week in the legal world than I might have anticipated. Cases regarding Obamacare, gay marriage and taxes are now on tap. In short, America should start watching.
First off, the Supreme Court on Friday agreed to hear a case called King v. Burwell, which challenges the subsidies involved with Obamacare. Unlike NFRB v. Sebelius in 2012 — the case that upheld the Affordable Care Act’s individual mandate as constitutional — this case is far more technical. When the ACA went into effect, it promised tax subsidies for individuals buying insurance on new insurance exchanges to help keep costs for consumers down and encourage more people to actually buy a healthcare plan. As SCOTUSBlog reports, about five million people have accepted these subsidies so far.
The problem in King is that the law, as originally drafted, said that these subsidies would be granted to people who buy insurance off exchanges “established by the State.” And in the first year that the ACA was in effect, 36 states did not make their own exchanges; the federal government had to do that for them. The administration argues that it should be plain as day that Congress meant everyone should get the subsidies regardless of whether or not they bought from a federal or state exchange, but the plaintiffs here are basically saying that with a law as important and sweeping as this, Congress should have been more clear with its language.
Since there’s no Constitutional issue at hand here, this issue here would go away instantly if Congress just amended the law. However, considering that, since 2011, the only time the House has taken votes on the ACA is to repeal the whole thing, it’s not likely that this Republican-controlled congress is looking to “amend” anything right now. If the Court found against the administration and gutted those subsidies on federal exchanges, private insurance would likely become so prohibitively expensive for people without subsidies that the ACA would become “affordable” in name only.
Next up, big news on gay marriage: the 6th circuit Court of Appeals upheld same-sex marriage bans in Michigan, Kentucky, Ohio, and Tennessee (the first appeals court in the country to do so). That’s bad news for gay marriage advocates in those states, but potentially huge news for gay marriage at the national level. So far, the Supreme Court has been wary to take any new gay marriage cases because there has been near consensus by appeals courts that gay marriage bans violate the 14th Amendment. Now, we have a “circuit split,” and when that happens, it often forces the Supreme Court to look at the issue. Expect the Court to take up this case either this term or next.
Lastly, we have the midterm elections. I can’t say I’m particularly surprised by the results. Ostensibly, a Republican takeover of the Senate does not mean much right now: we’ve had divided government since 2011, and we were basically certain to have it through the rest of Obama’s term in office. What’s important about the Republicans controlling the Senate, however, is that they have far more leverage over Obama’s appointees to the federal bench. Since 1969, only 3 people have ever actually been voted down for a Supreme Court appointment (a couple others withdrew their names from consideration, like Doug “The only thing people will ever remember me for is smoking pot with my law students” Ginsberg). However, as the Supreme Court has become a central source of public policy, and since federal judges get to retain their posts for life, lawmakers have realized just how important these appointments really are. Here are a few recent stats on confirmation votes for Supreme Court justices:
Notice that all of these appointments were made at times when the President’s party was concomitant with the Senate majority party, and all of these justices were replacing justices of roughly equivalent ideological bent (Though the latter point is debatable with Alito and O’Connor). Compare these numbers with those of Antonin Scalia, who was confirmed unanimously. Scalia is also now the longest-tenured member of the Court. If for some reason he were to die or decide to step down in the next couple of years, his replacement might have the potential to totally reshape the Court’s ideological makeup. And with Obama still maintaining appointment power, you can bet that would force a heated battle between the Senate and him.