In the latest conservative challenge to the Affordable Care Act, plaintiffs in King v. Burwell argued that language in the act limits federal subsidies for low-income insurance purchasers to those who purchase through state-created insurance exchanges. The defenders of the act have argued that this reading of the statute is a perversion of obvious Congressional intent, ignores rules of construction that forbid taking snippets of language out of context, and would destroy the market for individual health policies in the states without their own exchanges and deprive millions of citizens of affordable insurance.
JALSA filed an amicus brief in support of the ACA for itself and several other organizations taking a radically different analysis offered by our inspired cohort in the area of health law, Assistant Prof. Abby Moncrieff of Boston University Law School. Cognizant that a fundamental precept of constitutional jurisprudence is that an interpretation of a statute which casts doubt on its constitutionality is never to be preferred if there is any alternative rational reading, and that the Supreme Court, in the previous ACA case, has recently reaffirmed the principal that the federal government cannot, constitutionally, coerce states (regarding the expansion of Medicaid), Prof. Moncrieff argued that the penalties that would be visited upon states without their own insurance exchanges if the plaintiffs’ construction were adopted would cast doubt on the constitutionality of the entire ACA, and therefore the plaintiffs’ interpretation in not possible. If the plaintiffs’ position were accepted, the regulations would stay in effect, but the federal subsidies that make it possible would not. The market for individual policies in those states would go into what has been termed a death spiral, ultimately making such insurance unavailable to millions of current and new subscribers.
During the oral argument, Justice Kennedy, one of the two potential “swing” votes between the conservative and liberal blocks on the court, asked pointed questions of plaintiffs’ counsel strongly suggesting that he had understood and perhaps been persuaded by the argument raised in JALSA’s brief. It is most often impossible to know whether one’s amicus brief has been read, let alone seriously considered. Here, it would seem, since this argument was raised only in the JALSA brief, that our efforts have indeed been given a hearing. Too early to celebrate, but we can certainly hope that Justice Kennedy has been convinced of this argument.
JALSA’s brief was supported by JSPAN (Philadelphia), JCUA (Chicago), the Boston Alliance for Community Health, and the Lawyers Committee for Civil and Economic Justice.