““Halbig is definitely a defeat to the administration.
The administration basically has two options. First, it can seek an “en banc” hearing, which is when the court as a whole will hear the case, as opposed to just a panel of three judges. En banc hearings, while they do occur, aren’t common.
But, in a high stakes case like this, I’d estimate the chances are more likely that the court will agree to hear it en banc.
The second option the administration has is to file a petition for a writ of certiorari at the Supreme Court. Generally, though, the Supreme Court waits to have a couple cases on the issue, and then seeks to resolve a split or disagreement.
Just a few hours after the DC Circuit issued its opinion, the Fourth Circuit issued its opinion in King, which reached the exact opposite conclusion. Thus, there is now a circuit split (assuming the administration bypasses the en banc process). With the circuit split, I’d say the odds are good that we will see another ACA showdown at the Supreme Court, this time about the subsidies.
If the DC Circuit decision stands, it will be a devastating blow to the ACA. A central aspect of the ACA was the federal subsidies to entice the millions of people to sign up, which is supposed to make the law financially feasible. Without these federal subsidies, people in the dozens of states that have not yet instituted a state exchange will have to pay full price and would therefore be less likely to sign up, everything else being equal.
In terms of the merits of the cases, to me, Halbig, although the minority position now, is a more consistent decision. King and the other decisions square only if the word “State” is ambiguous in the ACA: it isn’t — the word “State” means exactly that, it does not mean the federal government.
In statutory construction, there’s a doctrine called “Casus Omissus Pro Omisso Habendus Est,” which means that if Congress makes a mistake in a statute, the duty to fix it lies with Congress, not the courts. I think that doctrine applies here.
If the administration wants to allow subsidies in states that don’t have a state-created exchange, then it needs to work with Congress and amend the ACA.
If this goes to the Supreme Court, which it likely will, based on the NFIB decision, I think the Roberts Court would go to great lengths to uphold the subsidies, like it stretched to uphold the ACA as a tax a few years ago.” — Timothy M. Todd, Esq., CPA, Assistant Professor of Law, Liberty University School of Law
Todd’s opinions are his own and do not reflect the position of Liberty University.
“It might seem odd that Joanna Coles, editor in chief of Cosmopolitan, was invited to the White House for lunch. After all, why would the most powerful person in the world bother meeting with the editor of a publication that specializes in hot summer sex tricks and the year’s most dangerous diet? Particularly on May 2, 2014, when just about every important political journalist was in town for the White House Correspondents Dinner, the annual gala where pols and press rub shoulders and bond over bottomless booze.
But Coles had a big favor coming to her. In 2013, she publicly pledged her magazine’s ad space and editorial content to help promote the Patient Protection and Affordable Care Act, better known as Obamacare. There are now more than 100 references to Obamacare on Cosmo’s website, almost all of them glowing.
It would have been one thing if the magazine had exercised any degree of creativity or editorial tie-in while touting the law, e.g. “7 Tricks to Get Your Boyfriend to Sign Up For Overpriced Health Insurance-in Bed!” But alas, Cosmo’s Obamacare headlines have all the joie de vivre one expects of diktats from the Ministry of Information: “5 Important Questions About the Affordable Care Act”; “Valerie Jarrett: ‘All Insurance Plans Are Required to Cover Contraception”; “What the Affordable Care Act Means for Women With Pre-Existing Conditions”; and the hilariously defensive “Fox News Wrongly Believes Obamacare is ‘Advertising’ in Cosmopolitan.””
“From the beginning, the Obama Administration made it clear that a critical part of the success
of the Patient Protection and Affordable Care Act (PPACA) was offering insurance to uninsured
individuals through a modern website that was simple and easy to use. To that end, the
Department of Health and Human Services (HHS) through the Centers for Medicare & Medicaid
Services (CMS) invested hundreds of millions of dollars in developing the HealthCare.gov
website (website) to make it the showcase of PPACA, since it would be the first tangible
product the American public would associate with the law. Both metaphorically and factually,
the website was designed to be the public face of President Obama’s signature achievement.
However, the Obama Administration failed to task any one individual or entity within HHS or
CMS with ensuring the success of the public face of Obamacare. While there were individuals
and entities tasked with building and coordinating many of the business level components of
the website, there was no central coordinator fully responsible for the development of the
website, and no single contractor had the authority to direct other contractors. Furthermore,
rather than delegate responsibility fully to HHS and/or CMS, the White House continually
meddled in technical decisions and put pressure on CMS officials to launch the website on time,
regardless of operability and security concerns. As a result, officials ignored countless red flags
to launch a website with thousands of defects. In the end, the launch failed miserably, crashing
“America’s health-care system was badly in need of reform when President Obama took office. But instead of improving America’s health-care system, the president and his allies have made matters worse. The core problem in American health care is that there is not a functional marketplace in health insurance or health services to discipline costs and promote quality and value for consumers. Rather than empower consumers or encourage the kind of innovation that could make high-quality care cheaper and more accessible, Obamacare has shifted decision-making authority from states, employers, insurers, and consumers to the federal government. This centralization of power in the federal government has already crippled the private initiative that is so essential to delivering improvements in the quality of care for patients. Obamacare’s defenders will insist that for all its flaws, it will nevertheless expand coverage. Yet even after a ten-year gross expenditure of $2 trillion, Obamacare will leave 31 million Americans uninsured in 2021 and beyond.”
“When Capitol Hill Republicans and other conservative health policy analysts focus on developing viable “replacement” alternatives to Obamacare, they usually start with changing how the tax code subsidizes purchases of health insurance coverage. The two main proposals would expand the benefits of the current tax exclusion for employer-sponsored insurance (ESI) premiums to other insurance purchasers – either through tax deductions or through tax credits – and then limit its maximum amount per insured person. But neither one by itself strikes the right balance between efficiency, equity, and sustainability.”
“Medicaid, originally considered an afterthought to Medicare, is today the largest health insurance provider in the United States. Under the Affordable Care Act, the Congressional Budget Office projects Medicaid enrollment to increase nearly 30 percent by 2024, and federal spending on the program to double over the next decade. For the states, Medicaid is already the largest single budget item, and its rapid growth threatens to further crowd out other spending priorities.
In this collection of essays, nine experts discuss the escalating costs and consequences of a program that provides second-class health care at first-class costs. The authors begin with an explanation of Medicaid’s complex federal-state funding structure. Next, they examine how the system’s conflicting incentives discourage both cost savings and efficient care.
The final chapters address the pros and cons of the most mainstream Medicaid reform proposals and offer alternative solutions. This book offers a timely assessment of how Medicaid works, its most problematic components, and how—or if—its current structure can be adequately reformed to provide quality care, at sustainable costs, for those in need.”
Provide refundable and advanceable premium credits and cost sharing subsidies to eligible individuals and families with incomes between 133-400% FPL to purchase insurance through the Exchanges.
Provide states that offer Medicaid coverage of and remove cost-sharing for preventive services recommended (rated A or B) by the U.S. Preventive Services Task Force and recommended immunizations with a one percentage point increase in the federal medical assistance percentage (FMAP) for these services.
Require disclosure of financial relationships between health entities, including physicians, hospitals, pharmacists, other providers, and manufacturers and distributors of covered drugs, devices, biologicals, and medical supplies.
“Many franchisees of big chains hover around the threshold at which they will be required to start insuring workers or pay the penalty. With high turnover and a large percentage of part-time and seasonal workers, restaurant and retail operators must juggle several variables in figuring out whether they will cross the threshold.”