WASHINGTON (AP) — If the Supreme Court rules the way most Republicans want in the latest health overhaul case, GOP lawmakers who now have insurance coverage under President Barack Obama’s law may wind up with some explaining to do.
Members of Congress, staffers and dependents actually get their health insurance under a little-known provision of “Obamacare.” But if the Supreme Court strikes down government health care subsidies for millions of people in more than 30 states, legal and benefits experts say coverage for lawmakers from those states won’t be affected.
It could be a politically painful unintended consequence.
“That won’t look good, will it?” said Walt Francis, author of an annual guide to the federal employee health benefits program.
About 15,000 congressional staffers, lawmakers and dependents in Washington and around the country get their health insurance through the Washington, D.C., small business exchange, an online market created by the District of Columbia government under the federal health care law.
The Supreme Court is expected to issue its decision in King v. Burwell before the end of June. Should the Court reject the Obama Administration’s regulatory interpretation of the provisions of the Affordable Care Act (ACA) at issue in the case, the Treasury would be barred from paying health insurance subsidies to individuals who obtained coverage thorough Healthcare.gov, the federally run exchange for the 34 states that have not established their own state-based exchanges.
If you like your coverage, you can keep your coverage. That’s the pledge leading members of Congress are making to 6 million Americans at risk of losing their health insurance this year because of Obama administration actions.
At issue is a case before the Supreme Court challenging an IRS rule that allowed health insurance subsidies to be paid through exchanges created by the federal government – the infamous healthcare.gov website.
The Affordable Care Act says at least nine times that subsidies are available to citizens only if their state creates an exchange. In the end, 37 states either declined or failed to do so.
Supporters of the ACA are using scare tactics, saying millions of people would lose their subsidies and likely their health insurance if the court decides the IRS rule is illegal. They say Congress won’t act and states either can’t or won’t set up their own exchanges.
But they ignore commitments by House Speaker John Boehner, R-Ohio, Senate Majority Leader Mitch McConnell, R-Ky., and other congressional leaders to give states another option.
Congress is making plans now to pass legislation after the Supreme Court issues its decision, likely in June. The proposed legislation would create a safety net so people wouldn’t lose their current coverage and also would allow them to use their subsidies to select any policy approved by a state.
Millions of people could escape Obamacare’s onerous mandates and choose more flexible, affordable policies.
Many have dismissed Rick Scott’s lawsuit against the Obama administration over Medicaid funding as meritless, but the Florida governor might actually be doing everybody a favor. The case could help answer a huge constitutional question left over from the 2012 Supreme Court decision on Obamacare.
That’s right—there’s still more of the landmark ruling that upheld President Obama’s signature domestic policy to pick over.
Scott alleges that the administration is illegally trying to force Florida to expand Medicaid under the health care law by threatening to cut off about $1 billion from a separate federal funding stream which helps hospitals that provide uncompensated care to uninsured people.
The court ruled in 2012 that the federal government couldn’t threaten to cut off all of a state’s existing Medicaid funding, which would wreck any state budget, to compel states to accept Obamacare’s Medicaid expansion. It was unconstitutionally coercive; Chief Justice John Roberts called it “a gun to the head” in his decision.
“The Supreme Court said it’s illegal to be coercing a state to expand Obamacare,” Scott said Wednesday after a meeting in Washington with Health and Human Services Secretary Sylvia Mathews Burwell (they did not resolve the impasse). “That’s exactly what they’re doing.”
But what Roberts didn’t say in his ruling was where exactly the line is that separates the federal government’s lawful discretion to persuade states to participate in a program from such illegal intimidation. He explicitly avoided creating a definitive test for it.
“We have no need to fix a line either,” Roberts wrote after referencing a prior case in which the Court declined to delineate between persuasion and coercion. “It is enough for today that wherever that line may be, this statute is surely beyond it.”
On March 4, 2015, the U.S. Supreme Court heard oral argument in King v. Burwell, a tremendously important case involving the administration of the Patient Protection and Affordable Care Act, also known as Obamacare. King is important for a number of reasons. It’s important because a lot of money is at stake. It’s important because it may require fundamental changes to be made to Obamacare. And it’s important—indeed, perhaps it’s most important—because of its significant implications for the rule of law. In this Essay, I explain why the president’s actions in King were unlawful and why a ruling striking down the president’s actions is crucial to ensure the continued vitality of the rule of law.
From the early days of the Republic, a core component of our constitutional character has been the idea that our government is a government of laws and not of men. This means that our leaders—elected and appointed—are constrained by the words in our statute books and in our Constitution. Government officials must follow the law, even when their personal predilections would lead them in a different direction. This prevents arbitrary decision making and keeps executive discretion within proper bounds.
On March 4, 2015, the Supreme Court heard oral arguments in King v. Burwell, a case that could have a significant impact on our healthcare system and on millions of Americans. A decision is expected in June 2015. To start this conversation, take the quiz to see what you know about what’s at stake in the King v. Burwell case
There are three simple numbers Republicans in Congress need to keep their eyes on in the aftermath of the Supreme Court’s forthcoming decision in King v. Burwell, no matter what the outcome: 28, 60 and 67.
28: The number of GOP governors in states with a federal health insurance exchange where a combined total of 6.5 million subsidy-eligible residents are at risk of losing those subsidies and their insurance if the plaintiffs win in King. The Department of Health and Human Service will offer these governors a quick fix: Simply deem the federal exchanges an “exchange established by the state” for the purpose of receiving federal subsidies. Without a Republicans alternative for these 28 governors, HHS’ escape hatch is going to look very attractive.
60: The number of votes Republicans must rally to overcome a Democratic filibuster of legislation that might put the president in an awkward position — such as repealing the individual mandate in exchange for allowing the subsidies to continue to flow for an interim period.
67: The number of votes Republicans need in the Senate to overcome a presidential veto — an impossible number. Republicans would have to be content to make Democrats take a hard vote on a full “repeal and replace” bill, losing the battle, but hope that it would set them up to win the war by maintaining the Senate and taking the White House in 2017.
At some point between now and the beginning of July, 2015, the Supreme Court will decide King v. Burwell. If the Court sides with the plaintiffs and invalidates the Internal Revenue Service (IRS) rule permitting federally facilitated exchanges to grant premium tax credits, the effects will be dramatic. Premium tax credits and cost-sharing reduction payments in the federally facilitated exchanges would probably cease at the end of July.
At that point, approximately 8 million Federally Facilitated Marketplace (FFM) enrollees currently receiving subsidies would have to decide whether to continue to pay the premiums themselves. Without the subsidies, their premiums would increase 122 to 774 percent depending on the state, with a national average increase of 255 percent. Millions of individuals would likely be unable to afford these premium increases and would cease paying their premiums. Their coverage would probably end 30 days thereafter.
Is it better to follow the strict letter of the law or to adjust it where appropriate to produce a more equitable result? This is one of the oldest questions in legal thought, one that can be traced back at least to Aristotle — and on Wednesday the U.S. Supreme Court weighed in, 5-4, on the side of equity, with Justice Anthony Kennedy providing the deciding vote.
Ordinarily, a decision like this one, involving the interpretation of the Federal Tort Claims Act would be of interest only to practitioners who are specialists in statutory interpretation. But this isn’t an ordinary spring. In June, the Supreme Court will hand down its most important statutory interpretation case in a generation, essentially deciding whether the Affordable Care Act will survive or fall. The interpretation question before the court in that high profile case, King v. Burwell, bears a striking structural resemblance to the obscure one the court decided Wednesday. And, not for the first time, Kennedy is the justice whose intentions we can’t help trying to predict.
Sen. Ron Johnson (R-Wis.) unveiled legislation on Tuesday that would allow people to temporarily keep their ObamaCare plans if the Supreme Court guts the law’s subsidies.
Johnson’s bill is the latest Republican effort to put forward contingency plans for the possibility that the high court could strike down subsidies that help 7.5 million people afford health insurance.
Many Republicans, including Johnson, who is up for reelection next year, worry that without a plan, they will face intense political pressure to simply restore coverage under ObamaCare to the millions of people who would lose insurance in the case King v. Burwell. A ruling is expected in June.