Lobbying the Press? The Many Fronts of the Latest Obamacare Battle


The stakes in King v. Burwell, the Supreme Court’s latest challenge to President Obama’s signature piece of legislation, are breathtaking.

According to the Affordable Care Act’s supporters, millions of Americans stand to lose their newly acquired healthcare coverage if the high court sides with the law’s challengers.

And if they don’t—that is, if the justices side with the federal government—they will be turning their backs on the rule of law at a critical time when the executive is strategically broadening its authority. Or so the law’s opponents say.

So it’s no surprise that the parties and their amici have stretched beyond their legal briefs targeted to the Supreme Court justices, to articles and radio spots aimed at the court of public opinion.

But is there another front in the war over ACA subsidies—the battle to convince the press?

For weeks leading up to the court’s oral argument today I’ve been bombarded with requests to listen to media briefings from various organizations about the controversial case.

And while it’s always helpful to get a fresh perspective and hear expert analysis about a complex legal issue, why are there so many perspectives being offered before the court even hears oral arguments?

Sure, the healthcare law is elaborate, but the scheme underlying the challenge isn’t particularly complex or difficult to grasp.

So are the members of the press corps a targeted audience too; to be shaped and molded by the interested parties?

On Feb. 26, I accepted invitations to listen to media briefings from two prominent legal organizations on opposite sides of the ideological spectrum: the Federalist Society, a self-proclaimed “group of conservatives and libertarians interested in the current state of the legal order,” and the American Constitution Society, whose mission is to nurture “the next generation of progressive lawyers, judges, policy experts, legislators and academics.”

Both featured knowledgeable and distinguished legal thinkers, including Jonathan Adler for the Federalist Society, who is credited as one of the architects of the King v. Burwell challenge, and, for the American Constitution Society, Erwin Chemerinsky, a celebrated expert on constitutional law and the Supreme Court.

These calls were eerily similar.

Both said that this was an “easy” or “simple” case of statutory interpretation. Or rather, that it should be an easy case but that politics might get in the way.

Both warned that context matters, and emphasized the surrounding statutory text and legislative history supporting their side.

And both suggested that the other side’s version was disingenuous to both the text of the law and Congress’s intentions.

So who’s right and who’s wrong?

Probably neither.

Oral arguments today touched on trampling on state prerogatives though federal coercion, to deferring to state agencies when billions of dollars are on the line. 

And all that was clear at the end of the day was that this was NOT an easy case of statutory interpretation.

It deals with fundamental judicial notions of how judges view their role in society, what they think the judiciary is realistically capable of, and how best to handle discourse among the political branches.

So, despite the best attempts at persuasion (and believe me, they are persuasive), we will just have to wait until the justices issue their decision to see how this battle ends.

But don’t worry, something tells me this isn’t the end of the war over Obamacare.

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