Today, the Supreme Court will hear oral arguments in King v. Burwell, a case challenging the legality of the federal subsidy provision of the ACA, because rather than just having a robust legislative debate culminating in a law, and then moving on with their goddamned lives, Republicans have voted to repeal it 56 times since President Obama signed it in March 2010, unleashing the tyranny of private market health insurance on all of us. After today’s oral arguments, the Supremes will hang out, have some drinks, braid each other’s hair, and then issue a decision in June as to whether the ACA’s federal subsidies are good to go in states using the federal insurance marketplace, or whether people in the states that declined to set up their own exchanges will suddenly, oops, no longer be eligible for federal subsidies. And then there will death spirals everywhere! Let’s ACAsplore.
Wait, what is the ACA again?
You can also call it Obamacare, and it has three parts. Everyone is required to have health insurance coverage or pay a fine – this is the individual mandate. It gives insurers lots of customers and a big risk pool, so that super-sick people won’t bankrupt the whole system. Insurers can’t deny coverage to people based on pre-existing conditions. And federal subsidies are available to help people afford coverage if they can’t otherwise afford it. It’s not single-payer, but it works better than a stick in the eye.
States were given the option of whether to set up their own health insurance markets (exchanges) or to have the federal government set up exchanges for them. The feds are running or involved in 33 state exchanges (mostly in red states), and 17 states are running their own. Guess who will lose their subsidies if SCOTUS strikes down the ACA? Eight million low- and middle-income people in red states! Or maybe six million. 6 or 8 or 9 or however many, A LOT. Sounds an awful lot like the whole Republican base, hmm? This is making some Republican governors feel very nervous. Didn’t they think of this before they started screwing everything up? Maybe not.
Haven’t we already been to this rodeo?
Conservatives first thought they could sink the ACA on the issue of individual mandates, because obviously Ayn Rand didn’t include mandates when she wrote the Constitution. But in 2012, in NFIB v. Sebelius, Chief Justice Roberts, who is obviously a total RINO (oh, wait, the Court isn’t supposed to be partisan) wrote for the majority, which upheld the constitutionality of the individual mandate on the grounds that it is part of Congress’s power to tax all y’all. The Court did strike down the requirement that Medicaid be expanded, but whatever, that was only for really poor people anyway (this part of the decision was terrible). We were pretty happy that day, because we thought hooray, the Chief Justice is sort of on our side, and he said it’s mostly constitutional, plus now Republicans won’t throw any more tantrums, because of how they say they love the Constitution so much. We were so crazy back in 2012, those were good times.
King v. Burwell and the Clueless Wingnut Plaintiffs
After the NFIB decision, Republicans in Congress voted to repeal the ACA a bunch more times, which was fun, and then they dug up some wingnut plaintiffs to challenge it on a different ground. We picture the wingnut-to-wingnut convo going like this: “Um, let’s see what we can come up with, oh! When the government provides subsidies in states where the feds run the exchanges, hmm, that somehow hurts us! Yeah! We can misread these four words in the statute!” The plaintiffs have absolutely zero clue what they’re talking about, and their lawyers haven’t kept them in the loop. Although they all say they hate government healthcare, three out of four of them will be eligible for Medicare soon, and we are pretty sure they will sign up, because everyone freaking signs up. When interviewed by reporters in recent weeks, they seemed “befuddled” that their actions could result in millions of people losing their health insurance.
Which brings us to today’s case. King v. Burwell is a statutory interpretation case. SCOTUS will have to decide whether the ACA drafters meant to exclude people in states using the federal exchange from receiving subsidies to buy insurance when they referred to exchanges “established by the state.” Yeah, the drafters could have said it another way and avoided this particular problem, but we are pretty sure the wingnuts would have just found another phrase that they could willfully misunderstand. SCOTUSblog says:
The challengers note that Congress said the subsidies would be available on exchanges “established by the state,” so the outcome of the case should turn on those four words, as well as what they imply about Congress’s design of the system. The government counters that this is a big and complex law, with a purpose of setting up a nationwide system, and many parts of the law’s content point to a universal system of exchanges operating within the subsidy system. Focusing on just the language of the law, each side can cite some words with a “plain meaning” in support of their view. [emphasis ours]
So the government will argue, “hell yes, when we set up this huge system with the intent of insuring everyone, obviously we meant for everyone on all of the exchanges to get subsidies if they are poor! Why else would we even be doing this? Read this phrase in the context of the statute. Plus, you should defer to the IRS’s interpretation of the subsidies, because precedent.” And the wingnut lawyer will argue “sorry, no, if Congress had meant for everyone to get health insurance, they would have said so in a different but perfect and magical way, they obviously want total freedom for states.”
In an unrelated decision handed down just last week, Justice Ginsburg, writing for a plurality and joined by Roberts, laid down some awesome language on statutory interpretation. ThinkProgress reports:
“Whether a statutory term is unambiguous,” Ginsburg explains, “does not turn solely on dictionary definitions of its component words. Rather, ‘[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’”
Justice Scalia joined Justice Kagan’s dissent, which also contained strong and awesome language to this effect. It would be great if Roberts and Scalia continued to think this way for the next few weeks. But the chance of Scalia upholding the ACA is about zero.
If the wingnuts win this case, up to eight million low- and middle-income people in 33 states (mostly red states, remember) will no longer be eligible for federal subsidies. The risk pool will shrink as people opt out of buying insurance, premiums will rise for the remaining people, driving more people out, causing higher premiums, and this keeps going, and it is bad, and it is called an economic death spiral.
What’s the contingency plan if SCOTUS invalidates the subsidies?
Glad you asked! There isn’t one! President Obama’s theory seems to be “why on earth would I have a contingency plan to fix a thing that was starting to work fine and that you guys are trying to wreck, on purpose?” Last month, Republicans on the House Energy and Commerce Committee, which is one of the committees with jurisdiction over health insurance laws, demanded at a hearing that HHS Secretary Sylvia Burwell hand over the administration’s double-secret contingency plan, which Burwell said doesn’t exist.
It’s hard to fathom that the administration would bury its head in the sand and fail to engage in any contingency planning,” Pitts wrote in a statement Wednesday ahead of the hearing.
Yeah, well, we find it pretty hard to fathom that Republicans have spent years trying to burn down this law and then expect the administration to help them fix it. As Democrat Eliot Engel (D-NY) pointed out at the hearing,”It’s somewhat ironic that my Republican friends are demanding that the administration fix problems that they themselves created.” Somewhat ironic is the understatement of the year, good one, Rep. Engel!
Congressional Republicans are at a loss, because the only big idea they ever had on health reform looked a lot like the ACA (see: Mitt Romney, Massachusetts). Congress could, of course, solve the problem by amending the ACA to clarify the subsidy issue, but the Republican majority would probably rather eat their own children. Or states using the federal exchange could set up their own exchanges. This seems marginally more likely, at least in some states. The Washington Post says:
a group of lawmakers led by Paul Ryan in the House and Orrin Hatch in the Senate have come up with what they call an “Offramp from Obamacare” — legislation that would temporarily restore the lost subsidies and then replace them with other forms of financial aid like tax credits. They’d also do away with the law’s minimum coverage requirements and the individual mandate.
But why would a party that can’t agree on how to fund the Department of Homeland Security agree on a strategy to take advantage of a win in King v. Burwell?
Washington Post, you ask an excellent question. The answer is they won’t. Congressional Republicans are terrible losers and they are also terrible winners. They will hope for SCOTUS to rule against the ACA and then watch their constituents lose their health insurance because they can’t afford premiums without subsidies. Dying on principle because you don’t have health care is easy when it’s not you who’s doing the dying (members of Congress have health coverage, so they’re fine, thanks for asking).
But it’s time to water the tree of liberty, blah blah. Let us fervently hope that Chief Justice Roberts cares about his legacy, that Justices Ginsburg, Kagan, Sotomeyer, and Breyer continue to kick ass, and that Justices Alito, Scalia, Thomas, and Kennedy go away.