Anthony Kennedy May Save Obamacare

He was the voice of the opposition in the last Supreme Court vote that saved the law. He may now be the one to save it himself.

In the case before the court, the unique issue along with Kennedy’s record and his comments in oral arguments raise the possibility he will join the four liberal justices to endorse the law. Three years ago, his fellow conservative Chief Justice John Roberts cast the swing vote with the liberals to uphold the law. It marked a rare episode when Kennedy, the usual key justice on this divided bench, did not control the outcome of a momentous case.

It is impossible to predict with confidence how the court will resolve the case, King v. Burwell. A ruling is anxiously awaited by officials in Washington and the insurance and healthcare industries nationwide.

What is known: Two days after the March 4 oral arguments this year, the justices, per their usual practice, took a vote in a small conference room off Chief Justice Roberts’ chambers. The most senior justice on the winning side then assigned the opinion for those in the majority; the senior justice on the dissenting side tapped a writer for the main dissent. Drafts of dueling opinions began circulating among the chambers…

On healthcare, either Kennedy or Roberts could tip the balance. Yet the 78-year-old Kennedy, appointed to the bench in 1988 by Republican President Ronald Reagan, may be in a more pivotal position based on his respect for state sovereignty and concern for the practical consequences of a decision.

While the 2012 dispute posed a broad-ranging constitutional challenge to the individual insurance mandate before it even took effect, this one turns on a mere four-word clause allowing tax credits for insurance purchased through exchanges “established by the state.”

…During oral arguments Justice Kennedy suggested the challengers’ view of the law could put unconstitutional federal pressure on states, because if they failed to set up exchanges, they would lose subsidies: “The states are being told either create your own exchange or we’ll send your insurance market into a death spiral,” he said.

Kennedy also does not rigidly interpret the words of a statute. He considers how a decision may play out, and he noted that if “people pay mandated taxes” and are denied tax credits, “the cost of insurance will be sky-high.”

By: Alan

Alan Colmes is the publisher of Liberaland.