• Facebook
  • Twitter
  • Subscribe
  • RSS

Supreme Court Accepts Appeal In Obamacare Subsidies Case

supreme-court-reports

For the better part of two years now, a new challenge to the Affordable Care Act has made its way through the Federal Court system. Unlike the first challenge that the Supreme Court disposed of in 2012 when it upheld the constitutionality of the individual mandate, or the less broad based challenge at issue in Hobby Lobby and its related cases that dealt with the question of whether certain regulations regarding birth control could be applied against businesses with religious objections, this challenge goes to the text of the law itself. As I explained in the past, the argument basically involves the subsidies that many people who buy insurance through either the federal and state exchanges are entitled to if they meet certain income criteria. Those challenging the law contend that, by its strict language, the statute only allows the Internal Revenue Service to give subsidies those  who buy insurance through an exchange exchange established by the individual states, not those who bought insurance through the exchange established by the Federal Government for those 30-odd states that refused to set up their own exchange. Supporters of the PPACA contend that, notwithstanding the language of the law, which does say what the people making this argument say it does, it is clear that Congress intended the subsidies to apply to all consumers and that the Court should give the law that broader interpretation. How this issue is decided is significantly important because the more restrictive interpretation would mean that much of the financial structure of the law would collapse of its own weight.

A number of lawsuits regarding the issue have been filed across the country, and this year there have been three rulings on the issue. In one case, Halbig v. Burwell, a panel of the D.C. Circuit Court of Appeals ruled that the law limited the subsidies only to the policies purchased through state exchanges. However, that case was accepted for en banc review by the entire D.C. Circuit so the panel decision has effectively been vacated. In another case, King v. Burwellthe Fourth Circuit Court of Appeals handed down a decision on the same day as Halbig that accepted the broader interpretation of the statute. Then, just last month, a Federal District Court in Oklahoma adopted the more restrictive statutory interpretation, agreeing with the decision of the D.C. Circuit Court panel. In the meantime, the Plaintiffs in King v. Burwell had filed for a Writ Of Certiorari, asking the Supreme Court to accept their case for appeal notwithstanding the fact that the en banc review in Halbig meant that there presently is no Circuit Court split on this issue. I thought at the time that the Justices would hold off on deciding what to do with the case until the D.C. Circuit ruled, but instead the Court today announced that it had accepted King v. Burwell for appeal, thus setting up another big case dealing with the PPACA for decision by the end of its current term:

The Supreme Court decided Friday that it would consider the latest challenge to the Affordable Care Act.

The justices decided to review an appeals court decision that upheld an Obama administration decision to extend tax subsidies to those who purchased health insurance through exchanges established by the federal government. The challengers argue that according to the wording of the statute, the subsidies should only extend to those in states that had established their own exchanges.

The administration and insurance companies say that would remove the underpinnings of Obamacare that made it workable.

The challenge focuses on four words in the massive bill. It said people would qualify for tax credits when they buy insurance in a market “established by the state.”

Only 14 states have established such exchanges. The law authorized the federal government to establish exchanges in those states that did not act, and it has done so.

Under a rule issued by the Internal Revenue Service, consumers can claim tax credits in any market. The administration says that is consistent with the law’s goal of making coverage available to all Americans.

But challengers claim the interpretation is contradicted by the wording of the law. They say the withholding of the tax credits was meant to spur states to create their own exchanges, and should not be available where states opted not to act.

About 4.6 million people in those states receive the credits. But the importance of them extends beyond, as all agree that they are essential to making the law work.

The court will consider an appeal from the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled in King v. Burwell that the IRS interpretation was consistent with the intent of the law.

Lyle Denniston fleshes out some more detail:

Since the health care exchanges have been in operation, nearly five million individuals have received federal subsidies to help them afford health insurance on an exchange run by the federal government. The average subsidy had been about $4,700 per person.   The fate of those subsidies apparently will now depend upon how the Court interprets four words in the Affordable Care Act.  In setting up the subsidy scheme, Congress said it would apply to exchanges “established by the State.”

The challengers to subsidies for those who shop for insurance on a federal exchange have argued that those words limit the availability to the tax benefits solely to state-run exchanges.  That argument failed in the U.S. Court of Appeals for the Fourth Circuit, in the ruling now under review.  It was accepted in the U.S. Court of Appeals for the District of Columbia Circuit, but that ruling has now been set aside while the full D.C. Circuit reconsiders the issue.

Thus, as of now, there is no split in the federal appeals courts on the challengers’ argument and thus on the scope of the ACA language regarding subsidies.  The lack of such a split, however, did not prevent the Court from going ahead to grant review of the King case, as the challengers had asked it to do.  They had argued, among other points, that the longer the subsidies continue to consumers who had gone to federal exchanges, the harder it would be to undo the program if the Court were to accept the challengers’ interpretation.

It would have taken the votes of four Justices to grant review.   The Court, as usual, did not indicate the way the Justices had voted on that question.  It will take a majority, of course, to decide the case in the end.  A ruling is not expected to emerge until near the end of the current Term, in late June or early July.

The new case appears to be as important to the functioning of the ACA, as it emerged from Congress in 2010, as was the mandate that every individual in the nation (with few exceptions) had to obtain health insurance by this year, or pay a financial penalty.  The Supreme Court in June 2012 rejected a challenge to the individual mandate, finding that the arrangement Congress had made was a valid tax scheme.  No one absolutely had to buy insurance, but those who did not would face a penalty as part of their filing of federal tax returns, as the Court viewed the mandate.

That was a decision based on the Constitution.  The question presented by the case that the Court granted today is how to interpret legislative language chosen by Congress.  Underlying that issue, however, is the broader question whether the words Congress chooses are to be the sole guide to what a law does, or whether the larger purposes that Congress seems to have in mind should determine how to read the words.

The challengers take the “literal interpretation” approach, although they also have policy reasons for reading the ACA as they do.  The Obama administration takes the “broader purpose” approach, contending that Congress would not have set up the insurance program on a basis that is as limited as the challengers contend.  There are Justices on the Court on both sides of that debate over interpreting federal laws.

Nicholas Bagley from the University of Michigan Law School sees this as bad news for the PPACA:

As I see it, what’s troubling here is not that the Court took King in the absence of a split. Its rulespermit it to hear cases involving “important question[s] of federal law that ha[ve] not been, but should be, settled by this Court.” It’s not remotely a stretch to say that King presents one such important question. On this, I part ways with those who claim that granting the case marks a clear departure from the Court’s usual practices.

No, what’s troubling is that four justices apparently think—or at least are inclined to think—that Kingwas wrongly decided. As I’ve said before, there’s no other reason to take King. The challengers urged the Court to intervene now in order to resolve “uncertainty” about the availability of federal tax credits. In the absence of a split, however, the only source of uncertainty is how the Supreme Court might eventually rule. After all, if it was clear that the Court would affirm in King, there would have been no need to intervene now. The Court could have stood pat, confident that it could correct any errant decisions that might someday arise.

There’s uncertainty only if you think the Supreme Court might invalidate the IRS rule. That’s why the justices’ votes on whether to grant the case are decent proxies for how they’ll decide the case. The justices who agree with King wouldn’t vote to grant. They would instead want to signal to their colleagues that, in their view, the IRS rule ought to be upheld. The justices who disagree with Kingwould want to signal the opposite.

And there are at least four such justices. If those four adhere to their views—and their views are tentative at this stage, but by no means ill-informed—the challengers just need one more vote to win. In all likelihood, that means that either Chief Justice Roberts or Justice Kennedy will again hold the key vote.

None of this bodes well for the government.

Bagely makes an excellent point. As I noted in my post about the Halbig and King decisions when they were handed down, there is a strong argument that current Supreme Court precedent supports the idea that statutory ambiguities should be resolved in favor of the interpretation that keeps a statutory scheme intact, as long as that interpretation is reasonable and not so far removed from what the statute actually says to be considered judicial re-writing of the law. Given that idea, an interpretation of that portion of the law that covers subsidies which holds that the “state” exchanges that the law talks about refers not just to exchanges directly set up by the state but also those established by Federal Government for the states that chose not to create their own exchange. At the same time, though, there is also an entirely different reasonable interpretation of the statute which says that if Congress had intended for the subsidies to apply to policies purchased on the Federal Exchange then it would have said so and that it would be improper for a Judge to substitute their judgment for that of what Congress, speaking through the statute, has actually said. This position would seem to be closest to what Justice Scalia has described as his “textualist” approach to interpretation of the law which eschews the idea that a Judge ought to rely much on sources outside of a statute or Constitutional provision to determine what the drafter meant. Under that approach, language that clearly only refers to state exchanges would seem to preclude an interpretation that goes beyond that interpretation and tries to substitute a Justice’s opinion for the intent of Congress as expressed in the only way Congress can do so, via the statute itself. Added to this is the fact that there is apparently very little in the Congressional Record that is on point to this issue that one could rely on to argue that the language as used was merely some kind of scrivner’s error and that Congress clearly intended the subsidies to apply to all policies regardless of where they were purchased.

The other point to remember, of course, is that unlike the Circuit Courts and the District Courts, the Supreme Court isn’t necessarily bound by its own precedent. Traditions such as stare decisis do ted to guide Justices to be careful when they are tempted to overrule existing precedent, of course. That is why you’re more likely to see a Supreme Court opinion distinguishing a case before it from an unfavorable precedent rather than explicitly overruling it than you are to see an opinion that states explicitly or implicitly that a previous decision is no longer good law. These practices are rooted in the idea that there should be stability in the law rather than constant change, especially given the fact that people tend to rely on the stability of law and that radical, constant change every time there is a new balance of power on the Court undercuts that reliance. In the end though,those traditions are just that, traditions rather than rules. If a majority thinks a prior case was wrongly decided, it is perfectly entitled to proceed accordingly. So, even if previously existing statutory interpretation rules would have saved the subsidies, if there are five votes to go in a new direction, or five votes that rule that those rules require the court to adopt the more restrictive standard that the initial D.C. Circuit panel adopted, then the Court could end up dealing a blow to the PPACA that, in the end, would be far more serious than the loss of the individual mandate would have been.

Most likely, the acceptance of this appeal now means we’ll see oral argument early in 2015, with a decision, well, probably not until late June since that seems to be when the Court likes to release its most monumental opinions.

Related Posts:

  • None Found

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. humanoid.panda says:

    Remember kids, hyper-partisanship is evil!

    Like or Dislike: Thumb up 0 Thumb down 0

  2. David M says:

    Who knew the GOP actually planned on implementing the death panels?

    Like or Dislike: Thumb up 0 Thumb down 0

  3. al-Ameda says:

    Chief Justice Roberts gets another chance to transcend conservative hyper-partisanship. Scalia, Alito and Thomas revel in it, Kennedy is another matter but I suspect he’ll go with the Scalia wing on this.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. HarvaldLaw92 says:

    If Congress had intended for the interpretation being put forth by King and Halbig, wouldn’t they have worded it “established by the States”?

    As it is, it seems pretty clear to me that “state” in this instance should imply government. “The State”.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. HarvardLaw92 says:

    Note to self: check typing on username before hitting submit. smh …

    Like or Dislike: Thumb up 0 Thumb down 0

  6. David M says:

    @HarvardLaw92:

    I doubt half the readers would have even noticed if you didn’t…

    Like or Dislike: Thumb up 0 Thumb down 0

  7. HarvardLaw92 says:

    @David M:

    We do seem to have been overrun by Freepers lately, so you are probably right.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. At the same time, though, there is also an entirely different reasonable interpretation of the statute which says that if Congress had intended for the subsidies to apply to policies purchased on the Federal Exchange then it would have said so and that it would be improper for a Judge to substitute their judgment for that of what Congress, speaking through the statute, has actually said.

    The problem is that there are contemporaneous sources discussing the state/federal exchange subsidiy distinction and describing as a deliberate stick to punish states for not setting up their own exchanges. While that’s not fully depositive as to congressional intent, it does rule out the “it was a simple oversight” theory. Whoever wrote that passage clearly intended it to be interpretted the “no subsidies for the federal exchange” way.

    If congress votes for a law they don’t fully understand, what does “legislative intent” even mean? In that case there doesn’t really seem to be a specific intent one way or the other.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. David M says:

    @Stormy Dragon:

    The problem is that there are contemporaneous sources discussing the state/federal exchange subsidiy distinction and describing as a deliberate stick to punish states for not setting up their own exchanges.

    Come on, that’s not remotely true.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. @David M:

    There are multiple videos available of Jonathan Gruber saying precisely that.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Modulo Myself says:

    @humanoid.panda:

    That 99% of liberals don’t want Clarence Thomas to sexually harass their daughters is a big sign of liberal smugness.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. David M says:

    @Stormy Dragon:

    Those are at most ambiguous given all his other statements, and are not “sources”.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Modulo Myself says:

    @David M:

    Well, if you repeat it it sounds true. And holy f–k, will it be repeated. Also, Jonathan Gruber gave a speech. He’s the architect!

    Like or Dislike: Thumb up 0 Thumb down 0

  14. @David M:

    “Who are you going to believe? Me or your lying eyes?”

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Eric Florack says:

    that the court would have never taken up the case, I had this most recent election provenI submit that the court would have never taken up the case, I had this most recent election proven differently.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. David M says:

    @Stormy Dragon:

    Those statements by Gruber were made after the IRS had announced the tax credits were available on the Federal Exchanges. They are also contradicted by everything else he said or wrote, so they aren’t really useful in any way, except by GOP partisans playing games, trying to hide how evil their actions in this case truly are.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Gavrilo says:

    “Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.” -Jonathan Gruber

    It’s amazing how his harmless mistake coincides so perfectly with the text of the ACA.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Modulo Myself says:

    What are people even supposed to do if Gruber said what he said? No one who drafted the law in Congress thought this. The CBO did not even plan for a scenario in which the ACA would exist without mandates on any exchange, state or federal.

    You’re still stuck with this being a typo. What do you do with that? You can’t talk about intent, and then point to a speech by an academic and then circle back to copy errors.

    My guess though is that this will morph into another installment of, “how elitist out-of-touch liberals blah blah blah etc…so let’s punish poor people to teach Gruber and Obama and the jerk liberals who think I’m stupid and weak-willed a lesson.”

    Like or Dislike: Thumb up 0 Thumb down 0

  19. @David M:

    I’m amused by this concept that is something you’ve previously said becomes politically inconvenient, you can just claim you never said it and that means any proof that you did in fact say it is “no longer a source”.

    But I guess that’s what makes me evil.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. David M says:

    @Stormy Dragon:

    In this case, there is no question about the law’s intent. Zero.

    The actions GOP and the supporters of this lawsuit are evil.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Stonetools says:

    There is all types of ambiguous language in the statute. Heck, there is a clause in section 1311 saying that the states “must” establish an exchange. A plain reading of that would indicate that all the states that didn’t establish exchanges are in violation of federal law. You don’t hear much about THAT provision from the textualists.
    The hyper technical approach the appellants are arguing would really screw up administrative law and precedent, but hey, wrecking Obama’s legacy is more important than any of that it seems.
    Thanks again, Ralph Nader and the 2000 Supreme Court. It’s things like this that make it absolutely important to get a DEMOCRAT in the White House in 2016 even if they answer to the name of Lucifer.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. @Modulo Myself:

    Seems to me that “vote for me, so we can make sure our state continues to get exchange subsidies” would have been a great campaign platform. Much better than “Don’t hurt me! I don’t even like Obama!”, anyways.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. wr says:

    @Stormy Dragon: So you will continue to fight for the principle that milllions of poor and middle class people should lose their health coverage because it’s possible to read an ambigious and likely misworded sentence in one way?

    What do you suppose the purpose of government is?

    Like or Dislike: Thumb up 0 Thumb down 0

  24. @wr:

    I wasn’t aware I’d started to fight for that principle.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. Stonetools says:

    @Gavrilo:

    Now , if he had only been a legislator, this argument would make sense…

    Of course, I’d you read what he said, he is saying that the federal backstop actually will supply subsidies, once it’s set up. He was saying the federal government was slow in setting up subsidies in order to get the state to set up exchanges. In the end, though, the Feds did set up the backstop. In any case, it’s unclear what he is saying and He has disavowed that the meant that the subsidies weren’t meant for the federal exchange. That’s where we are.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. Gustopher says:

    What prevents the states from just contracting with the federal government to set up an exchange for them? Would that be any different than hiring private contractors?

    For $1, this can be solved.

    Some red states will choose not to do this, but they will then just subsidize the other states since they still pay the taxes.

    Will all the other provisions of ObamaCare, minus the subsidies, cause an insurance death spiral in some states? I have no idea, but I do know it won’t happen in my state.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. David M says:

    @Gustopher:

    Nothing prevents that, and it will definitely be easy enough for a state to do so. The only reason it isn’t fixed is that the GOP wants to kill the law (and some people).

    Like or Dislike: Thumb up 0 Thumb down 0

  28. MikeSJ says:

    Some states didn’t have the expertise to set up their exchanges so they went to the Federal exchanges instead. I’ve heard that a simple state webpage that redirects to the Federal site would suffice.

    I do think the conservatives on the court will stick it to Obama so we will see a major shake up coming.

    But doesn’t that mean the blue states with the state exchanges will have health care and the red states won’t? Those people voted for Republicans and actions do have consequences.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Stonetools says:

    @David M:

    Your last sentence is important. The sad thing is that people will die for lack of medical care over this- and one party doesn’t seem to give a Sh1t about that, because the people dying are poor and the wrong color. But maybe I guess I am being hyper partisan.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. MikeSJ says:

    @Stonetools:

    The sad thing is that people will die for lack of medical care over this- and one party doesn’t seem to give a Sh1t about that, because the people dying are poor and the wrong color

    Those people don’t exist from what I can tell. They are utterly invisible from any policy discussions about the ACA in the press or by politicians.

    Seeing the Democrats run away from this was truly a sorry spectacle. Instead of losing while standing on principle they lost cowering on their knees.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. john says:

    In the law, the Federal Exchange was SPECIFICALLY set up as a completely separate entity from the State Exchanges. Never are the subsidies meant to apply to the federal exchanges; they were only for the state exchanges.

    It’s not a drafting error. It was intentional. And if it was a typo, why did the government not argue that in court?

    Like or Dislike: Thumb up 0 Thumb down 0

  32. David M says:

    @john:

    Any actual evidence this was the intent, or a reason why they would do this? And no, the fact that this helps the lawsuit or would help GOP controlled states completely opt out of the law aren’t believable.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. john says:

    @David M:

    Evidence? Read the bill maybe?

    Maybe Pelosi should have read the bill first so that she could find out what’s in it.

    Like or Dislike: Thumb up 0 Thumb down 0

  34. john says:

    For an analysis of drafting errors vs subsidies for state exchanges:
    http://thefederalist.com/2014/07/23/no-halbig-did-not-gut-obamacare-because-of-a-drafting-error/

    Like or Dislike: Thumb up 0 Thumb down 0

  35. David M says:

    @john:

    The link from the federalist isn’t much use, as it’s a bunch of people who don’t comprehend the point if the law discussing the intent of the people who actually passed the law. The GOP are not credible on this issue, as their beliefs render them incapable of understanding the issue, and the motivations if the people who passed the law.

    Like or Dislike: Thumb up 0 Thumb down 0

  36. John Burgess says:

    @HarvardLaw92: Hmm… I thought it was in order to deflect blame.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. John Burgess says:

    @David M: Ah, that lovely bit of liberal debate… “If you don’t agree with me, you’re evil.”

    Godwin’s Law needs a codicil.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. John says:

    @David M:
    Shorter: “I don’t agree with them, therefore I dn’t need to listen or acknowledge them.”

    Like or Dislike: Thumb up 0 Thumb down 0

  39. David M says:

    @John:

    They presented no evidence that the Democrats who passed the law intended to withhold subsidies from people who purchased insurance on the federal exchange.

    That is the issue, what the Democrats who were trying to expand access to health care intended, and why GOP claims of intent are meaningless. The GOP does not want to expand access to health care, and has no insight into the motivations or intent of the people who passed the bill. Their claims lack all credibility and should be ignored.

    Like or Dislike: Thumb up 0 Thumb down 0

  40. HarvardLaw92 says:

    @John Burgess:

    Blame for what, exactly?

    Like or Dislike: Thumb up 0 Thumb down 0

  41. Robert Levine says:

    Interesting that, in the 2012 Obamacare decision, both the opinion and the dissent assumed that subsidies would be available on all the exchanges. Now apparently it’s going to be clear that they aren’t.

    Like or Dislike: Thumb up 0 Thumb down 0

  42. Stonetools says:

    @john:

    Well , I’ve just read the explanation in the Federalist. It only makes sense really to someone who wants the bill to fail, so, not very convincing.
    Among other things, it fails to explain just why they would set up a federal exchange with no subsidies. That doesn’t make sense and never will- which is why, nobody, but nobody, discussed that as an option prior to this lawsuit.

    Like or Dislike: Thumb up 0 Thumb down 0

  43. David M says:

    @John Burgess:

    The GOP desperately doesn’t want to discuss what refusing to expand Medicaid and eliminating subsidies on the federal exchanges actually mean for peoples lives, but those have an actual impact. That the discussion is unpleasant for the GOP isn’t my problem. I’m not the one working to make sure millions of people lose their access to health care.

    Like or Dislike: Thumb up 0 Thumb down 0

  44. anjin-san says:

    @Eric Florack:

    that the court would have never taken up the case, I had this most recent election provenI submit that the court would have never taken up the case, I had this most recent election proven differently.

    What drugs are you on exactly?

    Like or Dislike: Thumb up 0 Thumb down 0

  45. CET says:

    @MikeSJ:
    But doesn’t that mean the blue states with the state exchanges will have health care and the red states won’t?

    That was my question as well. If that ends up being the way it is, then it seems like we should see a push in Red States to create state exchanges if/when it becomes clear to everyone that the ACA is working out well.*

    *My understanding is that this is more or less already the case, but it’ll take a few years for that to sink.

    Like or Dislike: Thumb up 0 Thumb down 0

  46. Tony W says:

    @anjin-san: Reading that I was thinking Bithead was, maybe, 3 bourbons in at that point.

    Like or Dislike: Thumb up 0 Thumb down 0

  47. MikeSJ says:

    @CET:
    That was my question as well. If that ends up being the way it is, then it seems like we should see a push in Red States to create state exchanges if/when it becomes clear to everyone that the ACA is working out well.*

    Nope. They already know it works. The Republican voters and politicians they elected do not want to help those people. It’s that simple.

    And since the Red States are gonna stay Red that means the poor and sick in those states are going to stay screwed. The only hope I see for change is if enough hospitals start closing due to the refusal to expand Medicaid and those closures start impacting the Republican voter.

    Maybe then we’ll see progress but even then it will be tough. If keeping a local hospital open meant helping those people, I’m not sure what the typical Red State older Republican voter would do. Self interest alone would mean keeping your local hospital open but antipathy is a very powerful force with these people.

    Like or Dislike: Thumb up 0 Thumb down 0

  48. Eric Florack says:

    @anjin-san: I could ask you much the same question.

    Like or Dislike: Thumb up 0 Thumb down 0

  49. yetanotherjohn says:

    @David M:
    There were two earlier drafts of the ACA bill in the senate. One was the HELP bill that had federal and state exchanges with subsidies in both. The other was the senate finance committee bill that had only state exchanges with a provision that the feds could build and exchange and turn it over to a nonprofit if the state wouldn’t/couldn’t build an exchange. This had subsidies only for state exchanges because there only would be state exchanges, the only difference being who built/ran the state exchange.
    These two bills were merged into the ACA which kept the idea of both state and federal exchanges, but the language only referred to subsidies on the state exchanges. As one of those who helped to draft the law (Jonathon Gruber) said, this was to incentivize states to set up their own exchanges. The idea was that voters would descend on the state capital with pitchforks demanding their subsidies forcing the states to set up the exchanges. Gruber has since said he misspoke, but this is hard to credit as he said this on two occasions that we have recordings and at least once was part of his prepared remarks.
    As a democrat said “we have to pass the bill so that you can find out what is in it”. Now that we have passed the law and the dems aren’t as happy to find out what is in it, the onus should fall on whom?
    I hope the court looks at prior drafts vs passed bill (which based on prior court rulings would say something that was in a draft and then removed can’t be read back into a law with judicial interpretation), the clear text of the law and says no subsidy for the federal exchanges. Then we could get the “bipartisan compromise” so dearly valued to fix the law. States that want to set up an exchange can and the law stands as now (with immediate imposition of missed deadlines) and other states are free from the law entirely. Then we can see how things evolve. Will blue states with exchanges become more desirable to live in or red states without exchanges and free markets for insurance more desirable? Both dems and the GOP seem to be sure they know the answer, let’s find out.

    Like or Dislike: Thumb up 0 Thumb down 0

  50. al-Ameda says:

    The bottom-line is this: Does the Supreme Court want to fold up ACA and create 10 million uninsured citizens?

    Alito, Scalia and Thomas? Definitely.
    Kennedy and Roberts? Probably, they know the election results, they will kill the subsidy turn this back to Congress knowing full well that this Congress doesn’t want ACA fixed, they want it killed.

    Like or Dislike: Thumb up 0 Thumb down 0

  51. Grewgills says:

    @MikeSJ:

    Those people don’t exist from what I can tell. They are utterly invisible from any policy discussions about the ACA in the press or by politicians.

    That is the impact of what they do intend whether or not they directly intend it or not. I don’t think any of the opponents of the PPACA are twirling their Snidely Whiplash waxed mustaches and laughing at the deaths they will cause, but they are at best either ambivalent or absurdly ignorant about the suffering their preferred policy will cause.

    Like or Dislike: Thumb up 0 Thumb down 0

  52. Stonetools says:

    @al-Ameda:
    About the only thing that might save the ACA is that a lot of the health care industry supports it. So Judge Roberts, who loves big business like he loves his own mother might save the day again.

    Like or Dislike: Thumb up 0 Thumb down 0