"What Leading Lawyers Made of High Court Action"The National Law Journal
Erin Sweeney commented on her impressions of the oral argument held March 4 before the Supreme Court in King v. Burwell. "Justice Kennedy, the likely swing vote in today's argument, suggested that the choice given to the states -- create your own exchange or send your state insurance system into a death spiral -- raises a 'serious constitutional issue,'" Sweeney said. "When it was pointed out to Kennedy that the government did not raise the constitutional issue, Kennedy quipped, 'sometimes we think of things the government doesn't.'"
Further discussion of constitutional issues were introduced by Justice Sotomayor. "When Sotomayor suggested that the claimant's position would require some states to lose all Medicaid funding, she then asked rhetorically, 'How is that not coercive in an unconstitutional way?'" Sweeney said.
"For his part," Sweeney added, "Justice Scalia pressed the government to concede that if a statute is capable of only one reasonable interpretation, regardless of whether the interpretation produces disastrous consequences, the interpretation must be enforced. Scalia suggested that where a provision is unambiguous, 'but lord that would make a terrible mess' is not enough to avoid enforcement of the law."
She shared a prediction as well. "The court appeared split, 5-4, in favor of upholding the law, with justices Breyer, Ginsberg, Kagan and Sotomayor siding with Kennedy," she said. A decision in anticipated in June.