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Supreme Court Will Likely Uphold Affordable Care Act, Law Profs Say

By Andrew M. Duehren, Crimson Staff Writer

Last week’s oral arguments in King v. Burwell suggest that the United States Supreme Court will uphold the Affordable Care Act, according to several Harvard Law School professors.

The case calls into question the tax subsidies for health insurance provided by the federal government to citizens in roughly three dozen states which have not established the health insurance marketplaces known as exchanges. If the law’s challengers are right, the federal government would no longer be allowed to provide subsidies to anyone purchasing healthcare coverage through these exchanges.

Last week, the Court heard oral arguments on the questions, and Law School professors say that based on the justices’ questions and lawyers’ responses, the challenge would likely fall short.

“I would say for people who hoped that the Court would permit the subsidies to be paid, it was a very encouraging oral argument,” said Richard H. Fallon, a law school professor.

Fallon said the four justices considered to be liberal—including former Harvard Law School Dean Elena Kagan, Stephen G. Breyer, Sonia Sotomayor, and Ruth Bader Ginsberg—will most likely vote to uphold the ACA. He also predicted that Antonin Scalia, Samuel A. Alito, and Clarence Thomas—the three justices usually considered conservative—will most likely vote in favor of the challengers.

Several professors identified Justice Anthony M. Kennedy—often the “swing vote” on the Court—and Chief Justice John G. Roberts ’76, who voted to uphold the healthcare law in 2012, as the votes that could decide the fate of the law.

In particular, professors said Kennedy’s line of questioning suggests that he could vote to uphold the ACA. Einer R. Elhauge, a professor at the Law School, said it seemed “very likely” that Kennedy would vote to uphold the law as it exists now, providing the required fifth vote.

“I thought the biggest surprise out of the oral argument was just how clear it was,” Elhauge said, adding that he does not usually make predictions about how the Court will vote.

Noah R. Feldman ’92, another professor at the Law School, also identified Kennedy as a potential vote in favor of the Obama Administration.

“The clear news was that Justice Kennedy is thinking seriously about a problem with the challengers’ interpretation,” he said.

Although professors also speculated that Roberts may also vote to uphold the law, they are less sure because he was mostly silent during the oral arguments.

For his part, University Professor Laurence H. Tribe ’62 predicted a 6-3 decision in favor of upholding the ACA.

The Court is expected to issue a ruling on the case early this summer.

—Staff writer Andrew M. Duehren can be reached at Follow him on Twitter @aduehren.

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