The first lawsuits challenging the Affordable Care Act were still in the early stages, but conservative lawyers were already working on a backup plan in December 2010 if the first line of attack failed.
It was Thomas M. Christina, an employment benefits lawyer from Greenville, S.C., who found a new vulnerability in the sprawling law. “I noticed something peculiar about the tax credit,” he told a gathering of strategists at the American Enterprise Institute.
With a rudimentary PowerPoint presentation, Mr. Christina sketched a new line of argument. He pointed to four previously unnoticed words in the health care law, enacted nine months earlier. They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been “established by the state.”
The Supreme Court will hear arguments on the implications of Mr. Christina’s theory on Wednesday. If a majority of the justices accepts it, more than six million Americans could lose health care coverage and insurance markets could collapse in about three dozen states where the federal government runs the exchanges, imperiling the health care law itself.
This is the first threat to President Obama’s signature legislative achievement to go before the Supreme Court since it upheld a crucial provision in 2012, by a 5-to-4 vote. Mr. Christina said he hesitated to take too much credit for the current case, King v. Burwell, No. 14-114.
“People think of interesting ideas all the time,” he said in an interview. “This one happened to be an interesting idea that came at an opportune time.”
The timing of his discovery figures in the case, which will turn on the meaning of the phrase he identified in 2010. The justices must decide whether Congress intended it to forbid the government to provide subsidies in states without their own exchanges.
Supporters of the law note that Mr. Christina did not discover the phrase until well after the law’s enactment, suggesting that Congress had been unaware of the possibility that people in states that opted not to run their own exchanges would be ineligible for tax subsidies.
“Petitioners are now telling the justices that Congress deliberately withheld subsidies to force states to establish exchanges,” said Doug Kendall, president of the Constitutional Accountability Center. “The fact that it took nine months from passage of the A.C.A. for even its most vitriolic opponents to discover this ‘feature’ of the act is evidence enough that this is a bald-faced lie.”
The law’s defenders add that other provisions in the act, along with its structure and purpose, make clear that it called for subsidies in all 50 states. They add that the subsidies, which are intended to reduce premiums for low- and middle-income people, are vital to the economic underpinnings of the law.
SOURCE: ADAM LIPTAK
The New York Times