SCOTUS will hear the King v. Burwell case on March 4. This is the case in which it is alleged that states that did not set up their own exchanges under the Affordable Care Act cannot offer federal subsidies to people buying insurance through the federal exchange. The New York Times editorial board says of this,
On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity that, if successful, will tear a huge hole in the Affordable Care Act and eliminate health insurance for millions of lower-income Americans — exactly the opposite of what the law was passed to do.
Even an idiot ought to be able to understand that the primary point of the exchanges is to facilitate people buying individual health policies that can be subsidized. I suspect even some Republicans realize this.
The suit is based on one ambiguously worded sentence in the ACA. In a subsection of the law dealing with tax credits, the ACA describes exchanges “established by the states.” The authors of the bill say this was a vestige of the original assumption that the states would set up their own exchanges. It wasn’t anticipated that so many would refuse to do so. But the Burwell challenge hangs on those four words — established by the states.
The challengers did not innocently happen upon these words; they went all out in search of anything that might be used to gut the law they had failed to kill off once before, on constitutional grounds, in 2012. Soon after the law passed in 2010, Michael Greve, then chairman of the Competitive Enterprise Institute, which is helping to finance the current suit, said, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”
After the challengers found the four-word “glitch,” as they initially called it, they worked backward to fabricate a story that would make it sound intentional. Congress, they claimed, sought to induce states to establish exchanges by threatening a loss of subsidies if they did not. (Not coincidentally, the challengers also traveled state to state urging officials not to set up exchanges, thus helping to create the very “crisis” they now decry.) Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law. So it is no surprise that no one involved in passing or interpreting the law — not state or federal lawmakers, not health care journalists covering it at the time, not even the four justices who dissented in the 2012 decision that upheld the Affordable Care Act — thought that the subsidies would not be available on federal exchanges.
So, the purpose of Burwell is to kill Obamacare, and if SCOTUS decides for the plaintiffs, it might very well succeed. The Kaiser Family Foundation estimates that if the states without their own exchanges lose subsidies, 13,402,890 Americans who ought to be insured by 2016 will lose out. And the entire law could quickly unravel for everyone, as the health insurance industry is thrown into chaos. I understand roughly 9 million people would lose their insurance almost immediately.
The immediate fallout from a decision for the ACA challengers would, therefore, be chaos and devastation, and the long-term consequences potentially even worse. The ripple affect could impact just about everybody, and probably not in a good way.
This past week Republicans in Congress seemed almost frantic in demanding the Obama Administration reveal their “Plan B” to the world. What will they do to save the ACA if the subsidies are struck down in so many states? And the Administration has said, over and over, there is no Plan B. If the subsidies are lost, there’s not a whole lot that can be done to salvage anything.
But rightie media are not accepting this. The Administration is hiding Plan B. HHS denies it is preparing Plan B. The Administration won’t say it is preparing Plan B. (Actually, it plainly says there isn’t one and none are in the works.) But there must be a Plan B! How could there not be a Plan B? Of course there is a Plan B, and congressional Republicans demand to know what it is.
Smart money says all this posturing is trying to signal the Court that the actual fallout of a decision for the challengers wouldn’t really be that bad; the Administration has a Plan B! Also, when the dominoes start crashing and people find themselves cut off from health care again, they are prepared to point to the White House — See? They should have had a Plan B. It’s their fault.
Republicans also have proposed a Plan B, although no one who knows anything about health care insurance thinks it will work. And a whopping majority — 64 percent — of Americans think that if SCOTUS rules against the subsidies, Congress immediately should step up and reinstate them. Which Republicans in Congress have no intention of doing.
Which makes me think that at least a few Republicans are genuinely nervous that a ruling in their favor could bite them, hard. Deep down, a few of the less demented among them may really want the White House to jump in with a Plan B and save their butts.
Update: Here’s something interesting — a GOP senator is proposing that if the subsidies are struck down, Congress should extend them for 18 months.
The loss of subsidies for millions of people would also put the Obama administration on the offense for the first time to protect its signature healthcare law.
A White House crusade against the GOP would mean a firestorm of accusations that the party is taking away care and endangering lives – building up for the 2016 election.
To avoid that situation, some Republicans are floating a stopgap that would keep the subsidies in place temporarily.
Sen. Ben Sasse (R-Neb.) promised this week that he would introduce legislation that creates a “temporary model to protect those harmed by ObamaCare” in which people could still receive financial help for their healthcare costs for 18 months after a court decision.
Startin’ to sweat a bit there, dude?
Senate Finance Committee Chairman Orrin Hatch (R-Utah) hinted at a similar proposal earlier in the week, promising “a short-term solution” until a Republican can enter the White House.
By some coincidence, 18 months from the likely date of the decision — end of June, 2015 — would possibly take us just past the 2016 elections.