A project of the Galen Institute

Issue: "Legal Challenges"

Timothy Jost: Implementing Health Reform: As King Decision Looms, GOP Senators Introduce Transition Plans

Health Affairs Blog
Thu, 2015-04-23
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.

Noah Feldman: Justices Drop Another Clue About Obamacare's Future

Bloomberg View
Thu, 2015-04-23
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.

Peter Sullivan: GOP senator unveils new ObamaCare backup plan

The Hill
Wed, 2015-04-22
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.

Sam Baker: Is the Bipartisan 'Doc Fix' Bad News for Obamacare?

National Journal
Thu, 2015-04-16
April 15, 2015 Congress just passed a big bipartisan health care bill, overwhelmingly and on a tight timeline. Now, some Democrats might hope the Supreme Court didn't notice. Republicans and Democrats defied just about everyone's expectations by passing a permanent "doc fix" after punting on the issue for more than a decade.

Scott Vorse: No Spoof

Competitive Enterprise Institute
Thu, 2015-04-16
WASHINGTON, April 16 – Today the Competitive Enterprise Institute (CEI) released a report by finance expert Scot Vorse that shows many states knew as early as 2011 that they might not receive tax credits if they opted out of establishing a state-based health insurance exchange. Whether nonparticipating states had adequate knowledge that they were putting their Obamacare subsidies at risk is a critical question in CEI’s Supreme Court case, King v. Burwell. Vorse obtained emails related to a January 2012 letter sent by seven states to the U.S. Department of Health and Human Services (HHS).

Senator Ron Johnson: A Make-or-Break ObamaCare Moment

The Wall Street Journal
Tue, 2015-04-14
Early this summer the Supreme Court will render a decision on King v. Burwell, the case challenging the IRS workaround that allows ObamaCare subsidies to be paid through federal exchanges. Many on the right believe that if the justices rule against the administration, it would be the final stake in the heart of ObamaCare. Nothing could be further from the truth. Millions of Americans would lose their federal subsidies and therefore be unable to pay for expensive ObamaCare coverage. In that case we can expect President Obama to declare immediately a crisis that can only be fixed by more government. As Rahm Emanuel, the president’s former chief of staff, once said, you never want a serious crisis to go to waste. If the court rules against him, President Obama’s response will be diabolically simple and highly effective. He will ask Congress to pass a one-sentence bill allowing the subsidies to flow through federal exchanges.

Charles Blahous: Gaming Out the Scenarios in King v. Burwell

Economics21
Mon, 2015-04-13
Earlier this year the U.S. Supreme Court heard arguments in King v. Burwell, a case critical to the future of the Affordable Care Act (ACA, or so-called Obamacare). Readers interested in the details of the case should find them elsewhere. Suffice it to say here that the case concerns whether individuals can receive tax credits for buying health insurance on exchanges established by the federal government, though the text of the ACA indicates such subsidies are provided for those buying coverage through an “exchange established by the State.” The case has the potential to invalidate substantial subsidies now being provided by federal taxpayers to millions of Americans using federal exchanges in 37 different states. Given the uncertainty created by the pending case, legislators on both sides of the aisle are considering how to react to various possible scenarios arising from a court decision.

Clark Neily and Evan Bernick: Supreme Court must decide law, not popularity: Column

USA Today
Mon, 2015-04-06
It's spring in Washington, and time to resume one of the capital's favorite sports. No, not baseball, but throwing mud at the Supreme Court. Pending cases include the legal status of same-sex marriage and whether the IRS can provide billions of dollars in Obamacare subsidies without explicit congressional authorization. Partisans have launched a preemptive bid to undermine the legitimacy of the forthcoming decisions by accusing the court of "activism" for involving itself at all. These increasingly transparent attempts to discredit the court should be rejected.Every case involving plausible abuses of power requires judicial engagement — conscientious, impartial truth-seeking, grounded in evidence — rather than reflexive deference to the political branches. Take the Obamacare case. At issue in King v. Burwell is a section of the Affordable Care Act concerning tax credits for buying health insurance from government-operated healthcare exchanges.

Heather Higgins: The Political Challenges of ‘King v. Burwell’

Frontpage Magizine
Mon, 2015-04-06
Heather Higgins: The thing that I do that spends actually most of my time and is not something that is terribly sexy for donors, but that I think is hugely important is work on Obamacare. That’s kind of how I backed into the political stuff. I had been very involved in 2009 in trying to help fund and orchestrate and message the entire battle against Obamacare because there was no infrastructure on the right that was really set up to do that. And then coming out of that had the epiphany that since Reid and Pelosi were not moving, maybe the way to do that was to go into the Massachusetts race for Ted Kennedy’s seat, that special election which was being run on the issues that had polled well in September, which were the national security issue and the economy, and instead redefine the race as being about healthcare and the 41st vote, which every political consultant I took that to thought that I was on drugs and that that was a waste of money.

Joel Zinberg: A King v. Burwell ruling for the plaintiffs may not equal death spirals

AEI
Mon, 2015-04-06
During the recent oral argument in King v. Burwell — the Supreme Court case deciding if providing subsidies to buy health insurance in the 36 states utilizing federal health care exchanges is allowed under the Affordable Care Act (ACA) — Justice Kennedy suggested that disallowing subsidies might be unconstitutionally coercive because “states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.” Are “death spirals” real, or just a way to frighten the public? The death spiral will purportedly happen like this: disallowing federal exchange subsidies will make insurance less affordable for the 87% of federal exchange enrollees currently receiving subsidies. These people will no longer be required to buy insurance since the ACA’s individual mandate only applies to individuals who have access to affordable insurance.

ObamaCare Watch Weekly

* indicates required

View previous campaigns.

Check out Jim Capretta's new book.

ObamaCare Primer