Obamacare Challengers Have Good Feeling After SCOTUS Arguments

A guard stands on the steps of the Supreme Court Building, August 20, 2014 in Washington, DC. (Photo by Mark Wilson/Getty Images)
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Dylan Scott
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Dylan Scott
March 4, 2015, 7:41 a.m.

The two men who mas­ter­minded the latest leg­al chal­lenge that im­per­ils Obama­care were feel­ing pretty good about their chances after Wed­nes­day’s or­al ar­gu­ments at the Su­preme Court.

Mi­chael Can­non, a Cato In­sti­tute schol­ar, and Jonath­an Adler, a Case West­ern Uni­versity law pro­fess­or, sat in on the hear­ing.

“I’m op­tim­ist­ic be­cause the two swing justices were very skep­tic­al of the gov­ern­ment’s ar­gu­ment,” Can­non said.

Adler con­curred. “I think we saw today is that the gov­ern­ment’s ef­forts to make this a tex­tu­al case don’t seem to be ap­peal­ing to a ma­jor­ity of the Court,” he said, “and that the sorts of ar­gu­ments that could po­ten­tially sup­port the gov­ern­ment’s po­s­i­tion would pose grave risks to oth­er fed­er­al pro­grams.”

Chief Justice John Roberts didn’t say much dur­ing Wed­nes­day’s hear­ing, and Justice An­thony Kennedy was tough on both sides. He did seem con­cerned about the fed­er­al­ism im­plic­a­tions of a rul­ing in fa­vor of the plaintiffs, say­ing dur­ing the ar­gu­ment that it would raise “a ser­i­ous con­sti­tu­tion­al prob­lem.” Adler ac­know­ledged is one of the most dif­fi­cult is­sues for their side.

But he countered that he didn’t think the gov­ern­ment wanted to win on those grounds be­cause it would have un­cer­tain im­plic­a­tions bey­ond the Obama­care case.

“If the court were to say that those con­di­tions are co­er­cive, then that would not really be a vic­tory for the gov­ern­ment. That would be a vic­tory for lim­it­ing gov­ern­ment,” Can­non said. “Con­gress would not able to im­pose a lot of the bur­dens on states that it’s now im­pos­ing. It would over­turn Su­preme Court pre­ced­ents, and it would make a lot of fed­er­al pro­grams vul­ner­able to chal­lenge.”

As Adler put it: “It would in ef­fect save this IRS rule at the ex­pense of oth­er pro­grams.”

“I doubt the Court is will­ing to go that way,” he said, “but if it were to go that dir­ec­tion, I don’t think the fed­er­al gov­ern­ment would con­sider that a long-term vic­tory.”

Can­non and Adler really got the case rolling with a Ju­ly 2012 brief ar­guing that the In­tern­al Rev­en­ue Ser­vice had il­leg­ally au­thor­ized Obama­care’s tax cred­its in the 30-plus states that use the Health­Care.gov web­site. And after many had ini­tially dis­missed their ar­gu­ment as a strained at­tempt to gut the law, they got their day in front of the highest court in the land.

In the in­ter­im, they have been con­stant voices in sup­port of the case in me­dia and on­line and filed amicus briefs in sup­port of the plaintiffs. The New Re­pub­lic at one point dubbed Can­non “Obama­care’s Single Most Re­lent­less Ant­ag­on­ist.”

Sam Baker contributed to this article.
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