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King v Burwell Could Turn On A Surprising Legal Twist June 25, 2015

By Grace-Marie Turner

Forbes, June 24, 2015

A guest post on The Washington Post’s Volokh Conspiracy blog has Washington buzzing about a possible outcome of the Supreme Court decision on King v Burwell.

James Blumstein, University professor of constitutional law and health law and policy at Vanderbilt Law School and director of the Vanderbilt Health Policy Center, explains in his article, “Why the procedural posture of King v. Burwell might matter.”

“The broad implications of the King decision have been front and center for a long time,” he writes. “Lost in these discussions – especially those that have focused on the potential for immediate disarray in state insurance markets – has been the procedural posture of the litigation now pending before the Supreme Court.”

Get ready for some legalese, but this could matter a great deal in the decision: “The lower court (the Court of Appeals for the Fourth Circuit) granted the government’s motion to dismiss the case. A motion to dismiss is premised on the following reasoning: Even if plaintiffs’ facts are correct, their legal claim is unwarranted — there is no legal violation asserted in the pleadings. If the Supreme Court agrees with the plaintiffs’ challenge in King, holding that the IRS regulation is invalid, then the Court can only overturn the lower courts’ granting of the government’s motion to dismiss. Procedurally, that is the only relief that the Supreme Court can grant at this stage.

“Of course, if the Supreme Court rules favorably for plaintiffs’ position, the plaintiffs will win their case – eventually. But some additional procedural steps are needed, and they will take some time.”
Blumstein’s post is worth reading to prepare yourself for a more drawn out impact of the court’s decision. The bottom line: A decision along these lines could give everyone more time to develop a remedy if the court decides the IRS did act illegally in allowing subsidies in federal exchanges.

“This breathing room will give the various players – states, Congress, the Obama Administration, insurance carriers, hospitals and other providers – time to consider next steps; and it will allow for a transition to the next stage without an abrupt change in the insurance status of those currently receiving subsidies but whose subsidies are not legally appropriate under a proper interpretation of the ACA.”

Here is a link to his full article, posted by Jonathan H. Adler who teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law.