What Obama’s comments on King v. Burwell tell us about the case’s outcome.

By Kimberly Leonard 

President Barack Obama in recent days has stumped in favor of his signature health care law and even second-guessed its review by the Supreme Court – choices some commentators questioned, given that the fate of his Affordable Care Act is expected to be revealed before the end of the month by justices who almost certainly have arrived at a verdict

Obama appears to be laying out his plans to the public and to his opponents so they know what to expect from the administration regardless of the outcome. But, analysts say, while the court has likely decided the fundamental issue, the president might yet have the opportunity to sway certain parts of its decision to his favor in a manner that could go a long way in determining the scope of the ruling or the timing of its implementation.

“There are nuances that have not been decided, but the big picture of who is going to win or lose has been decided,” says James Blumstein, professor of constitutional law and health law and policy at Vanderbilt Law School. “The president may have an effect tinkering around the edges.”  

Obama’s recent remarks in two separate forums during the past week have projected confidence that his administration will win the case, King v. Burwell, but they also put onus on the Republican opposition regardless of the outcome. If the administration loses, the White House has said it will be up to congressional Republicans to repair the consequences. If the administration wins, the White House expects congressional Republicans to back off.

Republicans, however, are engaging in the same type of rhetorical spin, having introduced their own laws to repeal and replace the Affordable Care Act and suggesting the law is hurting Americans. But analysts say the political theater that surrounds the issue is fairly routine in contentious cases and is unlikely to sway the justices.

“This kind of thing is conventional and normal when you get near the end of the term and a big case,” says Lyle Denniston, a reporter for SCOTUSblog. “This kind of outside noise is not going to make any difference on the outcome.”

The case centers on whether plaintiffs’ arguments that middle- and low-income adults who purchased health insurance through the federally run Healthcare.gov marketplace are entitled to subsidies. The language of the law, they argue, says tax credits are only to be distributed for online marketplaces “established by the state.”

If the Supreme Court rules in favor of the plaintiffs, about 6.4 million Americans will lose their health insurance because they will no longer be able to afford it, according to the Department of Health and Human Services.

Obama has not been shy about weighing in. At a G-7 meeting in Germany last week, he said the Supreme Court never should have taken up the case in the first place and that if it ruled against the administration it would be a result of a “contorted reading of the law.” Opinions were mixed as to the appropriateness of a sitting president weighing in on a pending Supreme Court case. He expressed confidence that the court would rule in favor of the administration, as it did in 2012 when the justices upheld the law’s most controversial provision requiring Americans to buy health insurance or pay a tax penalty.

Tuesday, at the Catholic Health Association’s 100-year anniversary event in Washington, D.C., Obama used moral and religious language to justify the health care law.

President Obama: “Congress could fix this whole thing with a one-sentence provision.”

“There’s something just deeply cynical about the ceaseless, endless, partisan attempts to roll back progress,” he said, referring to the Supreme Court case as well as the continued efforts by Republicans to repeal and replace the law.

Denniston called the optimism shown by the administration “a bit of whistling in the dark.” He added: ”They don’t have any more information than you and I do, but it’s not politically kosher for them to say they will lose.”

Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, says the court is still writing its opinions, which detail the decision as well as any concurring or dissenting thoughts of justices who do not agree with the ruling. Her organization filed an amicus brief on behalf of members of Congress who crafted the legislation. 

The administration would not know what the ruling is, Wydra says, adding: “Those who know don’t talk. And those who talk don’t know,” invoking a well-worn quote repeated by Justice Ruth Bader Ginsburg the last time Affordable Care Act was being considered, in 2012.

But Obama’s reminders of the millions of people who are signed up for health insurance could influence details such as how much time the court gives states to implement its decision, should it rule in favor of the plaintiffs.

“The critical issue will be remedy,” says Blumstein, who is also director of the Vanderbilt Health Policy Center. “There could be immediate consequences, but I don’t think that will happen.” He added that the court may give states six months to decide, for instance, thereby securing subsidies for those who signed up for insurance in 2015.

“There would be an opportunity for the parties to negotiate,” he says.

Meanwhile, Sylvia Burwell, the secretary for the Department of Health and Human Services, has said this week, for the first time, that the administration will do “everything we can” to help states if the subsidies from the federal marketplace are ruled invalid.

Still, she put political pressure on the opposition to manage the outcome. “The critical decisions will sit with the Congress and states and governors to determine if those subsidies are available,” she said at a hearing Wednesday.

At a conference held by Enroll America on Thursday, Burwell maintained that the administration was confident in its position and that the court would rule in its favor. After that, she said, “It is time to move on. We need to shift the conversation to affordability, quality and access.” 

It isn’t clear how states will react if the Supreme Court rules that subsidies in the federal marketplace aren’t valid. Only 16 states and the District of Columbia have established their own marketplaces, and therefore won’t be affected by the ruling.

A recent analysis by Modern Healthcare shows most states that use Healthcare.gov are taking a “wait-and-see approach.” Twenty-three of the states, the analysis found, are led by Republican governors or legislatures who are vehemently opposed to the health care law.

It is also possible that Congress could step in to clarify the confusing words or to pass a law that would uphold subsidies distributed through Healthcare.gov. “Congress could fix this whole thing with a one-sentence provision,” Obama said Monday.

Doing so, however, would counter Republicans’ message that Obamacare is a failed policy that should be repealed.

Republicans in Congress had their own message last week: The Affordable Care Act is not moving the country forward, but costing more and damaging health care providers.

“I imagine the families threatened with double-digit premium increases would beg to differ [with Obama], as would the millions of families who received cancellation notices for the plans they had and wanted to keep,” said Sen. Mitch McConnell of Kentucky, the majority leader.

Sen. John Barrasso, R-Wyo., said Republicans aren’t interested in a one-sentence fix other than the one that reads, “Obamacare is repealed.” He accused Obama of bullying the Supreme Court.

Republicans have backed their rhetoric with legislation. On Tuesday, Sen. Bill Cassidy, R-La., introduced a bill that was co-sponsored by Majority Whip John Cornyn, R-Texas, and McConnell. The “Patient Freedom Act” would allow states to continue to use state insurance exchanges set up under the Affordable Care Act or instead use the funding for subsidies to help people buy insurance to underwrite health savings accounts.

Sen. Ron Johnson, R-Wis., introduced a bill in April, the Preserving Freedom and Choice in Health Act, which would extend subsidies until 2017, but would also repeal the law’s requirements that people buy insurance and that large employers provide it.

When deciding on a case, the Supreme Court is supposed to be removed from political fervor, while instead taking the briefs, previous cases and arguments into consideration. Unlike Denniston, who expects the justices are unmoved by the rhetoric, Blumstein says it’s possible the court may not be insulated from the debate.

“There seems to be some view that the courts are influenced by the political process,” he says, “and I’m not so naive to think that’s not likely.”