United States: Round And Round And Round She Goes, And Where She Lands, Nobody Knows: The Future Of Obamacare And Why King V. Burwell Matters – A Five-Part Series

Last week, on Wednesday, March 4, the U.S. Supreme Court heard oral argument in the highly publicized case of King. v. Burwell—a lawsuit challenging the Affordable Care Act or "Obamacare" based upon what many would call the most pernicious of statutory problems – poor drafting.

The exact issue presented to the Supreme Court by the King petition is "whether the IRS may permissibly promulgate regulations to extend tax-credit subsidies to healthcare coverage purchased through Exchanges established by the federal government under section 1321 of the ACA."1 At first glance (and maybe even at the second, third, and fourth glance), this may seem to be a highly-technical issue of tax and administrative law.  However, for every professional and armchair constitutional law pundit out there, the issue – Federalism – goes to the core of who we are as a country.

Putting aside King's larger historical/political context and its legal niceties, the real issue in King is whether qualifying low-income individuals and families who obtain healthcare coverage through a federal Exchange (an Exchange created by the federal government for the residents of states that have decided not to create their own state Exchanges) are eligible to receive federal premium subsidies.  Without access to such premium subsidies, millions of low income individuals and families would be unable to afford healthcare coverage under the ACA.  As a result, many argue that one of the primary purposes of the ACA – increasing access to high quality, cost effective healthcare services by increasing access to healthcare coverage – would be substantially thwarted if the Court's ultimate decisions were to side with the petitioners.

Given the stakes, it is not surprising that political commentators on both sides of the aisle have employed sensationalist rhetoric to describe the King case and the potential consequences of a ruling for the petitioners and against the availability of premium subsidies for coverage provided on the federal Exchanges.  On the left, commentators warn of millions of Americans losing insurance coverage, with some claiming that nearly 10,000 Americans would needlessly lose their lives each year if the Supreme Court were to uphold the petitioners' challenge.2 Such pro-ACA commentators argue that a ruling for the petitioners—combined with continued Congressional dysfunction—would send the United States' health care system into the so-called "Death Spiral" resulting in skyrocketing premiums that would not only (1) push currently-subsidized beneficiaries out of the ACA healthcare coverage marketplace, but would also (2) negatively impact individuals who currently have ACA healthcare coverage without the need for federal premium subsidies.3

Other ACA supporters mock the substance of the legal arguments themselves, characterizing the petitioners' case as one built on right wing sound bites and fabricated history.4 For their part, conservative pundits decry the left-wing's "scare tactics" and claims that "the sky will fall" if the Court finds for the health law's challengers.5 They urge Americans not to be bamboozled by ACA supporters' dramatic predictions of catastrophe, and argue that a ruling for the petitioners will simply force the Obama administration to negotiate with Congress and allow major changes to the currently unworkable healthcare law.6

As evidenced by last week's comments from the bench, the Justices themselves seemed to be taking a more moderate view.  Justice Scalia, for example, acknowledged the potential for such "disastrous consequences" but placed some degree of trust in Congressional action to address them.7 Indeed, some prominent Republican legislators have already announced their intention to find a legislative solution to the potential fallout from a ruling for the petitioners.  There is also the possibility—floated by Justice Alito—that the fallout from a ruling in favor of the King petitioners might persuade states to establish their own Exchanges so as to allow their residents undisputed access to the federal premium subsidies.8

To both engage and edify our faithful readers and to keep the Sheppard Mullin healthcare team from biting their nails to the quick while waiting for the Court's ruling, we are preparing a short series of blog posts to examine the possible impacts a King Supreme Court decision could have on the various stakeholders in the U.S. healthcare marketplace.  More specifically, in the coming weeks, you will be consuming and be consumed by the following commentaries on the King case:

  • Week 1 will address the possible effects of the Supreme Court's decision on healthcare consumers including those individuals who currently access healthcare coverage through the federal Exchanges;
  • Week 2 will focus our attention on how the King decision may impact healthcare providers and suppliers;
  • Week 3 will address the concerns of employers who are subject to the ACA's "employer mandate"; and
  • Week 4 will conclude our series with King-related predictions from members of the Sheppard Mullin healthcare team and other U.S. healthcare legal and policy thought leaders.  Although we have told our prognosticators that there will be no prizes for the pundit with the most accurate prediction, we have no doubt that the usual contest of egos will provide some insightful and thought provoking possibilities to ponder. Perhaps.


1 "Question Presented," Petition for Certiorari to the Fourth Circuit, King v. Burwell at i.

2 http://www.huffingtonpost.com/dr-georges-c-benjamin/king-v-burwell-supreme-court_b_6787460.html .

3 http://www.nytimes.com/2015/03/02/upshot/how-an-adverse-supreme-court-ruling-would-send-obamacare-into-a-tailspin.html?abt=0002&abg=0 .

4 http://www.newrepublic.com/article/121107/king-burwell-obamacare-challenge-fox-news-baby .

5 http://www.breitbart.com/big-government/2015/03/02/exclusive-final-hours-of-obamacare/ .

6 http://www.foxnews.com/opinion/2015/03/02/king-vs-burwell-get-ready-for-obamacare-winners-and-losers/ .

7Oral Argument, King v. Burwell at 47:15-19, 54:9-55:3.

8 Id. at 52:2-10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
3 Dec 2018, Other, Los Angeles, United States

National Contract Management Association’s Government Contract Management Symposium

20 Feb 2019, Seminar, Orange, United States

The annual seminar addressing changes and developments in state and federal wage and hour laws is a unique one-day program and hundreds of California employers, personnel managers, controllers, attorneys, payroll managers, and supervisors attend each year.

21 Feb 2019, Seminar, Orange, United States

The seminar is designed to provide a guide to Human Resource Officials, Personnel Specialists, Consultants, Supervisors and other management officials through the ever-increasing maze of state and federal employment discrimination laws.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions