The U.S. Supreme Court is hearing arguments in King v. Burwell this morning. The case could decide the fate of a major portion of the Patient Protection Affordable Care Act: the subsidies approximately 7 million middle-income people across more than 30 states receive to buy health insurance.
A decision is expected by the end of June, the very end of the Court's term, when it typically announces opinions on the biggest cases.
Here are 10 things to know about the case as it kicks off today.
1. Liberal justices dominate questions during opening arguments. According to live coverage of the arguments from SCOTUSblog, the plaintiffs' lead attorney "barely got a dozen words out" before Justice Ruth Bader Ginsburg interrupted him to ask about the plaintiffs' standing and their ability to show they had been harmed by the subsidies. Justice Ginsburg said this line of questioning is an obligation of the Court. Liberal justices continued to dominate the questioning in the first 20 minutes, as Justice Stephen Breyer and Justice Sonia Sotomayor also raised questions. Justice Sotomayor said she has concerns about states being in a position to set up their own exchanges or send their insurance markets into a "death spiral" without subsidies.
2. Attention on Justice Kennedy. Shortly after, Justice Anthony Kennedy has said he sees "a serious constitutional problem" in the idea that Congress would force states to set up exchanges or run the risk of their residents losing tax credits. According to live coverage, during opening arguments for both the plaintiffs and the government, "A key focus in both portions continued to be Justice Kennedy, who at multiple times raised concerns about the constitutional consequences if the challengers' reading of the [PPACA] prevails," according to the Wall Street Journal.
3. The likely ruling. This one was forecasted by many legal experts to be a close call. The assumption is four justices appointed by Democratic presidents will side with the government, meaning the five justices appointed by Republicans are the ones to watch. In 2012, Chief Justice Roberts broke from his fellow Republican appointees and made the game-changing move of siding with the four Democratic appointees, ruling the healthcare law was constitutional. The New York Times reports that Chief Justice Roberts remains the Republican appointee most likely to side with the Democratic appointees, along with Justice Kennedy.
But as of 11 EST, Chief Justice John Roberts had asked no questions to the petitioners and seemed skeptical of Justice Ginsburg's efforts to question standing when the government stood up to give its case, according to SCOTUSblog. Interestingly, Justice Kennedy may be the swing Justice to watch if opening arguments are any indication. According to a National Journal report, Justice Kennedy "seemed at least open to part of the administration's argument, if not entirely sold on it."
4. Who is "King?" David King is one of four individuals bringing the case. The other three are Douglas Hurst, Brenda Levy and Rose Luck. The four live in Virginia, which did not set up its own exchange. Although they are not the only people to challenge the PPACA — many people in similar situations in other states did the same — the Supreme Court decided to take their case in early November. The plaintiffs' lead lawyer is Michael Carvin, a partner with Jones Day. Solicitor General Donald Verrilli Jr. is defending the government.
5. Verrilli and Carvin. Politico has profiled the two attorneys, describing their style of argument. Carvin is a native of Bronxville, N.Y. He argued Bush v. Gore before the Florida Supreme Court, and he often employs colorful rhetoric and metaphors in a plain-spoken style, according to sources. As one of his colleagues put it, Mr. Carvin may know a case inside and out but he does not "smother" people with case citations.
Don Verrilli is from a family of attorneys and government officials. He joined the Justice Department in 2009, and his friends have said this case may be more important to him than nearly any other one he's worked on. He previously served as deputy White House counsel before replacing Elena Kagan as solicitor general. His court demeanor is described as more restrained, less impassioned.
6. Background: The two sides. King challengers argue the IRS regulation that allows subsidies in all states is illegal, contending the language of the PPACA states subsidies are provided through state-established exchanges. According to the Washington Post, King contends the law was designed to pressure states into raising their own marketplaces, and that the IRS illegally issued the rule in 2012 that requires states to offer subsidies through federal exchanges when it became evident most states would not have set up their own exchanges by 2014, at the time of the initial marketplace rollout.
The Obama administration argues the law clearly states subsidies are available in all exchanges, regardless if they are federal or state-run, and that the challenge is merely politically motivated.
7. The potential repercussions. If the Supreme Court rules in favor of King, those who purchased insurance in up to 37 states would no longer receive financial assistance for their insurance premiums. The Kaiser Family Foundation has forecasted subsidies could be cut off within a month of a Court decision in support of King. Additionally, eliminating subsidies would also eliminate the employer mandate in federally run exchanges.
8. Government does not have a Plan B. In late February, HHS Secretary Sylvia Matthews Burwell sent a letter to Congress stating the Obama administration does not have a contingency plan if the U.S. Supreme Court blocks subsidies. Previously, Ms. Burwell had declined to comment on whether the HHS had a backup plan, but in her letter said she doesn't know of an option that could repair the "massive damage" caused by a decision to nullify subsidies.
9. Public opinions. Most Americans want subsidies to survive the Supreme Court hearing, according to Morning Consult. In a Feb. 10 poll of 1,781 registered voters, 68 percent of Americans believe health insurance subsidies should be available in all states, and 63 percent of respondents favor a plan that would secure subsidized health insurance for people in every state if the Supreme Court rules in favor of King.
10. Healthcare organization positions. Some health systems have even taken a stance to support the subsidies. In early February, Nashville, Tenn.-based Hospital Corporation of America filed a friend-of-the-court brief in King v. Burwell showing strong support for keeping health insurance subsidies in all states, saying the petitioners' legal theory in the case would have "absurd consequences."
The American Hospital Association, the Federation of American Hospitals, Association of American Medical Colleges and America's Essential Hospitals also supported the subsidies with a friend-of-the-court brief in the case.