A project of the Galen Institute
Hoover Institution
Tue, 2015-03-10
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.
The New York Post
Tue, 2015-03-10
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.
The Weekly Standard
Mon, 2015-03-09
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.
The New York Times
Mon, 2015-03-09
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 Hill
Sat, 2015-03-07
Supreme Court Justice Antonin Scalia has given Republicans new ammunition in the fight over ObamaCare by endorsing the idea that Congress is certain to act if the court deals a blow to the law. The conservative justice contended Wednesday that lawmakers would move quickly if the court, in the case of King v. Burwell, were to strike down subsidies that are helping millions of people purchase insurance through the federal exchange, HealthCare.gov.
Forbes
Thu, 2015-03-05
Today, the Supreme Court heard oral arguments in King v. Burwell, a case with significant implications for the future of Obamacare. Most of the justices’ questions proceeded along expected lines. Most notable was a series of questions by Associate Justice Anthony Kennedy, who questioned whether it would be constitutional for Obamacare to induce states to set up exchanges. If Kennedy’s fears are right—that federal subsidies for state-based exchanges are “coercive”—then he might side with the Obama administration in the case. But if you understand how Obamacare’s insurance markets work, it’s clear that Kennedy should side with Obama’s challengers.
Health Affairs
Thu, 2015-03-05
The Supreme Court justices had a lively discussion yesterday during arguments in King v. Burwell about who Congress intended to get health insurance subsidies and under what conditions. The central question is whether the Internal Revenue Service had the authority to write a rule authorizing subsidies to go to millions of people in the 37 states now operating under federal exchanges. The plaintiffs say the language of the law is clear: Subsidies are allowed in “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.” It doesn’t just say this once, but nine times in various linguistic forms. The government argues that it is just a typo in legislative drafting: Congress clearly wanted subsidies to be available to citizens of all of the states, and the IRS therefore had the authority to write its rule authorizing subsidies in both federal and state exchanges.
The Daily Mail
Wed, 2015-03-04
Justice Anthony Kennedy said state insurance exchanges could collapse without federal subsidies to offset the costs of insurance Supreme Court heard an hour of oral arguments in an Obamacare challenge, will cast votes Friday, and release a decision this summer Conservatives say law was written to deny subsidies to people in states that decided not to set up their own insurance marketplaces The White House insists Congress meant to treat everyone equally As many as 8 million people could lose their insurance without the subsidies, which lower the cost of insurance GOP wants to replace subsidies with temporary financial assistance, and then new state-based systems they say would be more competitive White House is 'quite pleased' with its solicitor general's arguments
The Daily Caller
Tue, 2015-03-03
Congress is busily making plans for legislative action should the latest challenge to Obamacare prevail in the Supreme Court. On Wednesday, the justices will hear arguments in King v. Burwell to decide whether the IRS had the authority to write a rule authorizing subsidies to go to millions of people in the 37 states with federal exchanges. The plaintiffs say the language of the law is clear: Subsidies are allowed in “an Exchange established by the State under [section] 1311of the Patient Protection and Affordable Care Act.” It doesn’t just say this once, but nine times in various linguistic forms. That is the point that MIT economist Jonathan Gruber made when he famously said: “If you’re a state, and you don’t set up an exchange, that means your citizens don’t get their tax credits.”
Forbes
Tue, 2015-03-03
The day of reckoning for President Obama’s lawless rollout of Obamacare finally will arrive this week when the Supreme Court hears oral arguments in King v. Burwell. Americans who are interested in the rule of law should hope that when the SCOTUS hands down its decision–most likely on the very last day of the term this June–it will rule to enforce the law that was actually written, not the law the IRS wishes had been written. But those like me who are interested in good health policy are looking forward to an important side-benefit of such a principled decision. It finally may give us a crude market test for a poorly conceived and badly marketed product that so far has survived only because it has a federally enforced monopoly behind it.

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