On the origins of a Supreme Court case
A lawyer, a law professor, and a libertarian spent the last three years struggling to convince first themselves and then national Republicans that a "glitch" in the Affordable Care Act could be the law's undoing.
This week they can drop the sales pitch. The Supreme Court will hear oral arguments in the case, King v. Burwell, on Wednesday, which will decide whether the Obama administration has the legal authority to dole out billions in tax subsidies to Obamacare enrollees.
Unlike the last time conservatives took Obamacare to the Supreme Court — when the Republican party, major activists, and 26 attorneys general joined forces — the new challenge has a more surprising backstory for a big case. It is the result of the key players working loosely, overcoming lawsuit fatigue in conservative circles, pushing an argument that seems more technical than substantive, and even a bit of luck.
"I think people imagine a eureka moment. It was nothing like that."
"There is nothing very organized about it," Michael Greve, a law professor at George Mason University who supports the case, has written. "The litigation has no single mastermind or man behind the curtain. The campaign is the product of a loose conservative-libertarian infrastructure."
The case is now in front of the Supreme Court, despite the unusual route it took. So while supporters might have viewed it as a nonsense legal challenge — never taking it as seriously as the individual mandate case — they still find themselves back where they were three years ago: fearing that the law could fall apart with just one court decision.
