Anticipating the upcoming Supreme Court decision on King v. Burwell, which could halt health insurance subsidies available through the federal exchange, Republican Senators Richard Burr and Orrin Hatch joined with Representative Fred Upton to propose a comprehensive replacement for the Affordable Care Act (ACA). The Patient Choice, Affordability, Responsibility, and Empowerment Act, or Patient CARE Act, is modeled on a proposal of the same name offered last year by Senators Burr, Hatch, and Tom Coburn, who has retired from the Senate. The Burr-Hatch-Upton plan, like its predecessor, adopts consumer-based reforms of the insurance market, modernizes the Medicaid program, and makes other changes intended to lower cost and increase choices.
In an earlier post, we described in detail the provisions of the Burr-Coburn-Hatch bill. In this post, we discuss how the Burr-Hatch-Upton plan differs from the earlier proposal. We also discuss the impact of the new proposal on health insurance coverage, premiums, and the federal budget based on a new analysis from the Center for Health and Economy (H&E), a non-partisan think tank focused on producing informative analyses of trends in U.S. health care policy and reform ideas. We conclude by commenting on the direction Republicans are likely to take in reforming the health system in the aftermath of a Supreme Court decision in the King v. Burwell case.
During a 2014 Valentine’s Day meet-up with House Democrats, President Obama thanked them for their unstinting support of the Patient Protection and Affordable Care Act. “I think,” he said, “10 years, five years from now, we’re going to look back and say this was a monumental achievement.”
Well, the president’s health care law marks its fifth anniversary this week. And most Americans are not, in fact, looking back and saying the law enacted in 2010 – with not one Republican vote in either the House or Senate – was a monumental achievement.
Indeed, in an NBC News/Wall Street Journal poll this month, a 44-34 plurality of respondents thought Obamacare a “bad idea.” And a 62-22 percent majority said that what they had seen, read or heard in recent weeks about the Affordable Care Act had made them “less confident” about the law.
Some suggest the public’s misgivings about Obamacare are almost entirely attributable to GOP opposition to the law. In a statement Monday, Democratic National Committee Chairwoman Debbie Wasserman Schultz noted that “Republicans have voted more than 50 times to repeal or undermine this critical law.”
Justice Anthony Kennedy’s comments in a run-of-the-mill budget meeting Monday may have signaled how he intends to vote in this year’s biggest Obamacare lawsuit over the legality of federal premium subsidies.
In a Monday budget request before the House Appropriations Committee, Justice Anthony Kennedy, typically the swing vote on the Court, made comments that could suggest he’s leaning in favor of the plaintiffs in King v. Burwell. The question in the pivotal case is whether the text of Obamacare restricts the law’s popular premium subsidies to state-run exchanges, of which there are only 14, and bans them from the vast majority of states that use the federally-run exchange, HealthCare.gov.
The battle over the lawsuit about Obamacare subsidies currently before the Supreme Court has focused on whether anyone’s got a solution if the Court’s decision ends up skyrocketing HealthCare.gov premiums.
ObamaCare is celebrating its fifth anniversary, but few Americas are cheering.
The Real Clear Politics average of the latest major opinion polls about the health law shows that 52.5% oppose it and only 42% approve. The 10.5% spread is identical to the average of polls taken when the law was signed five years ago. Approval numbers never have topped disapproval numbers since the law was enacted. It is not getting more popular and it is not settled law, as President Obama claims.
President Obama is touting the increased number of people who have health insurance as a result of the law. According to Gallup, the uninsured rate among U.S. adults averaged 12.9% in the fourth quarter of last year. The uninsured rate was 14.4% the year before the health law passed, also according to Gallup.
So our health sector has been thrown into turmoil, millions of people have lost their private health plans, $1 trillion in new and higher taxes have been imposed on individuals and businesses – and the uninsured rate has dropped a net of 1.5%.
Five years ago, President Obama and Congressional Democrats disregarded both the Constitution and the opinion of the American people when they enacted ObamaCare. Since then, Americans have seen the law transition from political to personal. Many have lost access to their longtime doctor. They lost the insurance plan they were happy with. They pay higher premiums or a higher deductible. Maybe it cost them their job, maybe it cost them hours at work, or maybe they’re suffering from all of the above.
As the legislation has been implemented over the last five years, the cracks in the final bill have expanded one by one into full scale crises. President Obama has attempted to patch these problems by writing new rules and regulations on the fly, often with questionable constitutionality. But soon his days of bypassing federal law and the Constitution may catch up to him, and to all of us.
If the Supreme Court in King v. Burwell strikes down subsidies to the buyers of health insurance on the federal exchange, President Obama will call on Congress to change the law to allow the subsidies. There also will be enormous pressure on elected officials to establish state exchanges in the 34 states that don’t have them. Instead, congressional Republicans should be laying the groundwork for market-friendly health reforms and devolving power to the states, meanwhile helping Americans who have difficulty purchasing coverage…
Last week’s Supreme Court arguments on ObamaCare struck me as a bit irrelevant, and not just because the case won’t impact New York.
The case is about whether federal subsidies are actually legal in states that didn’t set up their own insurance exchanges — but the truth is, ObamaCare is a bad deal even with the subsidies.
Down here in the medical trenches, the harsh reality of the Affordable Care Act continues to play out.
One of the most anticipated cases of the Supreme Court’s 2014-2015 term is King v. Burwell. In it, the Supreme Court is confronted with what should be a straightforward question of statutory interpretation about the scope of subsidies available under the Affordable Care Act (ACA). Section 1311 of the ACA states that “each state shall, not later than January 1, 2014, establish an American Health Benefit Exchange.” Another part of the law, section 1321, then qualifies that apparently absolute duty by providing that if the state does not “elect” to establish that exchange by January 1, 2014, or if it otherwise fails to meet the federal requirements for an exchange, “the Secretary [of HHS] shall . . . establish and operate such exchange within the state.”
The question of whether a state establishes this exchange determines far more than where individuals can buy their health care coverage. It also determines whether any purchaser of health insurance is entitled to a tax credit against his or her cost of coverage, as that subsidy is limited to taxpayers who are enrolled in a qualifying plan “through an Exchange established by the state” under Section 1311. Internal Revenue Service regulations interpreted the ACA requirement so that its tax subsidies were available to all individuals whether they enrolled in an exchange established by the state or by HHS when the state elected or failed to do so. The plaintiffs’ challenge to the regulation was in essence that the plain language of the ACA precluded the IRS from expanding the scope of the subsidy by this sleight of hand. King would have been an open-and-shut victory for the plaintiffs if the disputed interpretation had been some run-of-the-mill tax provision. But 36 states did not establish these exchanges because they wanted to guarantee their citizens the statutory tax breaks.
I haven’t commented much on the issues at play in the latest Obamacare case to reach the Supreme Court, mostly because there are so many lawyer-bloggers and health care pundits on the internet offering more informed takes than mine. But now duty calls, so here is my pundit’s view of things:
1) Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there. But the extent that we’re talking about the intent of the drafters as a collaborative group, my sense is that they’re telling the truth about having no such plan in mind, and thus that the text as we have it is the result of accident and oversight and blundering rather than design.
Chief Justice Roberts has said he likes mystery novels; once, as a lower-court judge, he invoked Sherlock Holmes’s “dog that didn’t bark.” But at the King v. Burwell arguments, Roberts himself was in effect the dog that didn’t bark, saying far less than expected and thus leaving reporters to puzzle over the mystery of how he might vote.
But the one question he did ask about statutory interpretation does merit particular notice, as the Washington Post’s Robert Barnes notes. It pertains to “Chevron deference” — the doctrine under which the Court generally should defer to an agency’s reasonable interpretation of an ambiguously worded statute.