A project of the Galen Institute

Issue: "Legal Challenges"

Brianna Ehley: How the GOP Could Box in the White House on Obamacare

The Fiscal Times
Wed, 2015-05-27
A group of Republican Senators is getting ready for a game of chicken with the administration if the Supreme Court strikes down Obamacare health care subsidies. Sen. Ron Johnson (R-WI) and a handful of senators are rallying around a contingency plan if the court rules against the administration in King v. Burwell and eliminates health subsidies for millions of people currently enrolled in the federal exchange, HealthCare.gov, Politico first reported. Related: Some States are in Debt Over Obamacare Exchanges The GOP plan would create a patch for the subsidies until 2017, sparing millions from losing health coverage. In exchange, the proposal eliminates two major provisions of Obamacare—the employer mandate and the individual mandate, which, policy experts warn, would cause a crippling ripple effect through the insurance market.

Jonathan H. Adler: On the origins of ‘established by the State’ in the Affordable Care Act

The Washington Post
Wed, 2015-05-27
At some point between now and the end of June, the Supreme Court will decide King v. Burwell and, in the process, determine whether the phrase “established by the State” actually means “established by the State.” This phrase, which appears twice in the Patient Protection and Affordable Care Act (PPACA) provisions authorizing tax credits for the purchase of health insurance in exchanges, has bedeviled defenders of the IRS rule purporting to authorize credits in federally established exchanges. Some claim this phrase is “convenient shorthand” for “exchange” (even though it’s neither more convenient nor shorter), while others argue the phrase is effectively meaningless, or actually means something else (such as established in the State). The plaintiffs, on the other hand, maintain that the language means precisely what it says.

Robert Pear: Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say

The New York Times
Wed, 2015-05-27
WASHINGTON — They are only four words in a 900-page law: “established by the state.” But it is in the ambiguity of those four words in the Affordable Care Act that opponents found a path to challenge the law, all the way to the Supreme Court. How those words became the most contentious part of President Obama’s signature domestic accomplishment has been a mystery. Who wrote them, and why? Were they really intended, as the plaintiffs in King v. Burwell claim, to make the tax subsidies in the law available only in states that established their own health insurance marketplaces, and not in the three dozen states with federal exchanges?

Grace-Marie Turner: Impact Of A King v Burwell Win: 'The Rest Of The Story'

Forbes
Mon, 2015-05-18
ObamaCare supporters have produced study after study warning of the devastation to come if the Supreme Court decides the IRS did in fact illegally extend health insurance subsidies to people in states operating under federal exchanges. But the American Action Forum (AAF), a dynamic think tank led by former CBO director Douglas Holtz-Eakin, has produced new research that provides balance to what has been a one-sided debate. He shows how people in 37 states will be helped if the petitioners prevail in King v Burwell. AAF estimates that more than 11 million people would be liberated from having to purchase expensive ObamaCare insurance and freed from the onerous penalties of the individual mandate, which cost those who don’t comply an average of $1,200 in fines this year. The study also finds that workers could earn nearly $1,000 more, and 1.2 million more people would join the workforce in federal exchange states if King prevails in the lawsuit.

Joel M. Zinberg: The King v. Burwell bogeyman

American Enterprise Institute
Fri, 2015-05-15
In March, the Supreme Court heard oral arguments in King v. Burwell, the case that will decide whether the language of the Affordable Care Act (ACA) allows only those who purchase health insurance through state-established exchanges—not federal health exchanges—to qualify for federal subsidies. Justices Sonia Sotomayor and Anthony Kennedy suggested that they may be forced to allow the subsidies for federal exchanges because limiting subsidies to state exchanges might unconstitutionally intrude on the federal-state relationship by coercing states into forming their own health-insurance exchanges. This federalism argument, however, is based on speculation leading to flawed legal reasoning. It shouldn’t determine the outcome the case. The ACA’s statutory language seems to limit federal subsidies to people enrolled “through an Exchange established by the State under section 1311,” the ACA section directing states to establish health exchanges.

Brittany La Couture, Douglas Holtz-Eakin: TaKing Stock: The Potential Impact of King v. Burwell

American Action Forum
Thu, 2015-05-14
The Supreme Court’s pending decision in King v. Burwell could upend the way premium subsidies are distributed through the Federal health insurance exchanges in as many as 37 states. The impacted states are those that declined or failed to establish their own exchanges under the Affordable Care Act (ACA). Examining the insurance market effects we find that:

Ricardo Alonso-Zaldivar: INSIDE WASHINGTON: No fallout for congressional health plan

Associated Press
Wed, 2015-05-13
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

Edmund F. Haislmaier and Drew Gonshorowski: Responding to King v. Burwell: Congress’s First Step Should Be

The Heritage Foundation
Tue, 2015-05-12
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.

Grace-Marie Turner: Counterpoint: GOP leaders have a better option

Spartanburg Herald Journal
Mon, 2015-05-11
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.

Dylan Scott: Will the Supreme Court Revisit Part of Its Landmark Obamacare Decision?

National Journal
Mon, 2015-05-11
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.

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