If the King v. Burwell decision goes in favor of King to eliminate the Obamacare subsidies in states that have not set up their own exchanges, you would think Republicans would be overjoyed. Instead, they’re divided and scrambling to find a fix…at least temporarily. This is the part of the law that people LIKE. If the subsidies in the federal exchanges are eliminated, then millions of people will lose the help they needed in order to get insurance. And then the exchanges would turn into an adverse selection death spiral.
This would not really be an issue in the first place if Republican governors and state legislatures in 34 states had just created their own exchanges with the federal money provided to do so. Instead, they chose to play politics and rebel. And now, if the Supreme Court rules in favor of King, they will be accountable to their citizens for the loss of subsidies.
The ruling is certainly far from guaranteed for King, as Yale Law professor Abbe Gluck explained very well.
But if King does win the case, Republicans can’t agree on a strategy for what to do next: do they provide some temporary fix to extend the subsidies until after the 2016 election, or do they just cut them off completely? A few million people losing the health insurance that Obamacare afforded them — based on a technicality — could make for some unpleasant town hall meetings for Republican legislators in red states as well as the 2016 GOP candidates for President.
I cannot think of a statute in our nation’s history that has ever been under such constant assault and sabotage after being passed than the Patient Protection and Affordable Care Act of 2010. In attempting to give states more control over their own destinies, Congress might have accidentally created enormous loopholes that undermine the law’s effectiveness. Perhaps they were overestimating conservatives’ sense of decency. In a truly stunning and baffling court decision, a 3-member panel of the D.C. Circuit Court of Appeals ruled 2-1 that subsidies for health insurance could only be granted through exchanges set up by states since that was the letter of the law. And, since most states refused to set up their own exchanges (usually the states run by Republican legislatures and governors), residents of those states had to use the federal exchange. Even the judges themselves knew they were helping people to get off on a technicality.
We reach this conclusion, frankly, with reluctance. District of Columbia Appeals Court judge Thomas Griffith
Fortunately, the 4th Circuit Court of Appeals in Richmond correctly interpreted Congress’s intent (perhaps they were paying attention during the debate over the bill) and ruled differently.
What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. 4th Circuit Senior Circuit Judge Andre Davis
So this seems like an issue destined for the Supreme Court if the 11-member appeals panel in the D.C. Circuit doesn’t overturn it themselves. I wouldn’t overreact to it yet.