Thought you were done with the U.S. Supreme Court and health care? Think again. The court has agreed to review the question of whether the federally created health insurance exchanges violate the law’s expectation that the exchanges be created by a state. Reading the tea leaves can only tell you so much about what the court is going to do. But from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again.
The legal arguments are a bit arcane, and I laid them out in a column this summer. To give you the bare minimum, the case involves the public exchanges that the Affordable Care Act anticipated would be set up by the states and therefore described as “established by the state” in the law. Only 14 states plus the District of Columbia have created such exchanges. As a result, the federal government established exchanges on the states’ behalf. Clever lawyers seeking to block operation of the ACA argued that the exchanges are illegal because they were not established by states. The U.S. Court of Appeals for the Fourth Circuit rejected the argument in King v. Burwell. A divided panel of the U.S. Court of Appeals for the D.C. Circuit accepted the argument in Halbig v. Burwell by a 2-1 vote.